OT:RR:CTF:VS H068535 ARU
Assistant Port Director
Trade Operations
Port of Detroit Metropolitan Airport
2596 World Gateway Place
Romulus, MI 48242
RE: Request for Internal Advice; Protest No. 3801-09-100141;
19 U.S.C. § 1520(d)
Dear Assistant Port Director:
This is in response to your request for internal advice, dated July 6, 2009, including an Application for Further Review (“AFR”) of Protest No. 3801-09-100141, filed by counsel on behalf of Dell Will Customs Brokers (USA), Inc. (“Dell Will”), dated April 17, 2009. In making this decision, we have also taken into consideration information provided during an October 7, 2009 conference call with Edmund Maciorowski and Anthony Troia, counsel for Dell Will, as well as a supplemental brief dated January 27, 2010. FACTS:
The entry at issue is for molds filed under subheading 8480.71.80, Harmonized Tariff Schedule of the United States (“HTSUS”) on December 20, 2006 at the Port of Detroit. No claim for preference under the North American Free Trade Agreement (“NAFTA”) was made at that time. The entry liquidated on October 19, 2007. On November 9, 2007 Dell Will submitted a letter on behalf of Windsor Machine and Stamping (“Windsor”) which states, “This SEC. 520 is being filed in conjunction with the above listed entry summary, …”. Later in the letter they state, “We hope that this is the information that is necessary for further consideration of our Sec. 520(d) request on the above listed entry summary …”. Your office notes that it was clear that the submission was a post-importation NAFTA duty refund claim under 19 U.S.C. §1520(d).
The November 9, 2007 letter, further, in part, states:
“This is a request for liquidation as a NAFTA issue. In addition, please find the documentation to comply with Sec. 181.32b of the C.R.:
1). We are hoping that this request can be considered, Sec. 520(d) request and this statement support our claim for Duty-free entry:
These items should have been duty-free under the provisions of NAFTA.
2). NAFTA Certificates which are necessary to support a NAFTA claim are enclosed along with a copy of our U.S. Customs Power of Attorney.
3). These entry summaries when filed are originally forwarded to their main office in Windsor, Ontario, Canada (Non-resident importer) who brought to our attention the erroneously charged duty.
4). This supplier/importer sells directly to various customers in the U.S. and no refund or rebates are offered as these shipments already are duty-free items.
5). Other than this Sec. 520(d), we are unaware of any other protest or petition has been filed on this entry summary requesting a refund for excess duties paid.”
The claim was denied by Customs and Border Protection (“CBP”) on February 15, 2008, Claim No. 3801-07-300429. CBP made notations on a worksheet that your office states is routinely used with post-importation NAFTA duty claims. The boxes on the worksheet “your request for relief has been” and “denied” were checked. However, the box “under sec. 520” was not checked. The reason for denial stated on the worksheet was, “The required statements according to 19 CFR 181.32 were not provided with the claim.” The worksheet contains a review’s signature, but does not clearly identify the reviewer. Further, the worksheet contains boilerplate language pertaining to the section 514 protest provision and the right to file a court action.
On March 13, 2008, Dell Will filed another letter stating, “This letter is a follow up to the denial dated February 15th of our Sec. 520 request made last November. … We are requesting further review and consideration of our Sec. 520(d) request .…” The March 13, 2008 submission included a letter from the importer of record (Windsor) “giving a history of the receipt of the entry summaries and the passing on of same copies.”
On April 25, 2008, Dell Will filed a third letter requesting an update on their claim. On June 25, 2008, CBP denied the second claim, Claim No. 3801-08-300458, using the same worksheet as was used for the February 15, 2008 response and noting, “The post-importation NAFTA claim under 19 USC 1520(d) was submitted untimely according to 19 CFR 181.31.” On both worksheets the boxes for “Your request for relief has been” and “denied” were checked. The box for “Under SEC 520” was not checked.
On September 24, 2008, Dell Will sent a letter to CBP asking for clarification of the 520(d) denial. CBP responded by faxing the letter back to Dell Will with a notation on the letter reiterating the decision: “The reason for denial of the original 520(d) 3801-07-302429 of 11/07, is still valid – ‘Required statements according to 19 CFR 181.32 were not provided’ after filing 3801-08-300458.” The response was dated October 8, 2008 and signed by an identifiable Senior Import Specialist. On October 15, 2008, CBP sent a copy of the relevant regulations to Dell Will with the following notation: “… [a]ll elements of CR 181.32(b)(1-4) must be included in the 520(d) claim. It seems in the claims for 336-4500239-8 not all elements were provided.” This communication was signed by a Senior Import Specialist.
On April 7, 2009, Dell Will filed Protest 3801-09-100141 for refusal to re-liquidate the entry under section 520(d). On April 17, 2009, counsel for Dell Will submitted a Memorandum of Law in Support of Protest and Application for Further Review. On May 7, 2009, the Protest and Application for Further Review were denied as untimely. On July 6, 2009, all documents and memoranda were forwarded to this office for review.
ISSUE:
Whether the post-importation 19 USC §1520(d) NAFTA claim was properly denied.
LAW AND ANALYSIS:
19 USC §1520(d) provides:
1520(d) Goods qualifying under NAFTA rules of origin
Notwithstanding the fact that a valid protest was not filed, the Customs Service may, in accordance with regulations prescribed by the Secretary, reliquidate an entry to refund any excess duties paid on a good qualifying under the rules of origin set out in section 3332 of this title for which no claim for preferential tariff treatment was made at the time of importation if the importer, within 1 year after the date of importation, files, in accordance with those regulations, a claim that includes –
a written declaration that the good qualified under those rules at the time or importation;
copies of all applicable NAFTA Certificates of Origin (as defined in section 1508(b)(1) of this title); and
such other documentation relating to the importation of the goods as the Customs Service may require.
The corresponding CBP Regulations, 19 CFR 181.32, require the importer to provide the following:
(b) Contents of claim. A post-importation claim for a refund shall be filed by presentation of the following:
A written declaration stating that the good qualified as an originating good at the time of importation and setting forth the number and date of the entry covering the good;
Subject to 188.22(d) of this part, a copy of each Certificate of Origin pertaining to the good;
A written statement indicating whether or not the importer of the good provided a copy of the entry summary or equivalent documentation to any other person. If such documentation was so provided, the statement shall identify each recipient by name, Customs identification number and address and shall specify the date on which the documentation was provided;
A written statement indicating whether or not the importer of the good is aware of any claim for refund, waiver or reduction of duties relating to the good within the meaning of Article 303 of the NAFTA. If the importer is aware of any such claim, the statement shall identify each claim by number and date and shall identify the person who made the claim by name, Customs identification number and address; and
A written statement indicating whether or not any person has filed a protest or a petition or request for reliquidation relating to the good under any provision of law, and if any such protest or petition or request for reliquidation has been filed, the statement shall identify the protest, petition or request by number and date.
19 CFR §181.32.
Regarding the denial of a post-importation claim for a refund, section 181.33(d) provides, in part:
(d) Denial of claim—(1) General. The port director may deny a claim for a refund filed under this subpart if the claim was not filed timely, if the importer has not complied with the requirements of this subpart, if the Certificate of Origin submitted under §181.32(b)(3) of this part cannot be accepted as valid (…), or if, following initiation of an origin verification under §181.72(a) of this part, the port director determines either that the imported good did not qualify as an originating good at the time of importation or that a basis exists upon which preferential tariff treatment may be denied under §181.72(d), §181.74(c) or §181.76(c) of this part.
19 CFR §181.33.
Regarding the statements made in the November 9, 2007 letter, while they appear to correspond with the regulatory requirements set forth in 19 CFR 181.32(b)(1-5), we agree that they were not sufficient to make a valid 1520(d) claim. For example, the first regulatory requirement calls for “[a] written declaration stating that the good qualified as an originating good at the time of importation and setting forth the number and date of the entry covering the good.” Dell Will’s statement does not mention the goods eligibility at the time of importation, it does not clearly identify the goods at issue nor the number and date of entry. In addition, the third regulatory requirement calls for “[a] written statement indicating whether or not the importer of the good provided a copy of the entry summary or equivalent documentation to any other person. If such documentation was so provided, the statement shall identify each recipient by name, Customs identification number and address and shall specify the date on which the
documentation was provided.” Since Dell Will submitted the claim on behalf of Windsor, it was clear that a copy of the entry summary was provided to someone other than the importer; however, this information was not provided in the November 9, 2007 letter. As a result, we find that it was appropriate for CBP to deny the post-importation NAFTA claim for not providing the required statements.
In Headquarters Ruling Letter (HRL) 229426, dated August 29, 2002, CBP considered the port’s denial of a post-importation NAFTA claim for failure to make the certification found in 19 CFR 181.32(b)(3). A protest filed one year and five days after the date of importation was made perfecting the certification required to make a 1520(d) claim. HRL 229426 held that as the post-importation NAFTA claim was not perfected until one year and five days after the date of importation, the perfected 1520(d) claim was not made within one year of importation and was, therefore, untimely. The decision stated that strict compliance with the certification statements under the holdings of various court cases is a condition precedent to granting a claim. Accordingly, the protest under 19 U.S.C. 1514 of the denial of the post-importation NAFTA claim was also denied because the perfected post-importation NAFTA claim was untimely. See also 562463 dated October 18, 2002.
As noted in the FACTs portion, Dell Will’s November 9, 2007 letter contained various statements. While they appear to correspond with the regulatory requirements set forth in 19 CFR 181.32(b)(1-5), your office found the content of these statement to be insufficient. On February 15, 2008, your office denied the post-importation claim on the grounds that, “the required statements according to 19 CFR 181.32 were not provided with the claim.” Further, although Dell Will submitted a supplemental letter on March 13, 2008, attempting to perfect its original claim, the second letter is dated more than a year from the date of importation and is therefore untimely. HRL 229426 holds that regardless of the procedure used, including a formal protest, a 520(d) post-importation NAFTA claim must be perfected within one year of importation to be valid.
Dell Will argues that in response to its November 9, 2007 letter, CBP “issued a series of responses denying a protest rather than a properly presented claim under §520(d).” Dell Will notes that the worksheet returned to Dell Will had an unchecked box (“Under SEC 520”), which if checked would indicate the denial was issued pursuant to §520, and that the worksheet states the following:
Under SEC 514. Note of caution: Your request has been denied under the protest provision of SEC 514 (CR 174.30). You have the right to file a civil action in the Courts of International Trade contesting the denial of the protest.
Dell Will claims that as a result of the unchecked box and the protest language, it was unclear to the broker what his next course of action should have been. Dell Will further claims (1) that CBP denied the November 9, 2007 claim as a 1514 protest and (2) that by doing so, CBP pre-empted Dell Will’s opportunity for administrative review through protest of a refusal to re-liquidate under 520(d). Dell Will claims, alternatively, that the broker correspondence in furtherance of the 520(d) claim, dated September 24, 2008, amounted to a protest and that the protest was denied on or about October 15, 2008. Dell Will then filed an official Protest on April 7, 2009, over one year from the date of CBP’s original decision denying the post-entry 520(d) claim. CBP regulations allow 180 days after the date of the decision for the importer to file a Protest. 19 CFR § 174.13(e). Your office denied the Protest as untimely.
As noted above, HRL 229426 holds that regardless of the procedure used, including a formal protest, a 520(d) post-importation NAFTA claim must be perfected within one year of importation to be valid. Therefore, regardless whether Dell Will’s March 13, 2008, letter was a follow-up to your office’s February 15 letter denying the post-importation NAFTA claim, or could be considered the filing of a protest against the denial, the information submitted on March 13, 2008 or thereafter, was past the one year deadline. Further, since the February 15 denial letter referred to the statements in 19 CFR 181.32, which sets out the filing procedures for post-importation duty claims, it seems clear that a post-importation duty refund claim, and not a protest, was denied. However, we recommend that your office consider clarifying the language on the form to avoid further future confusion.
HOLDING:
The response issued by the Port on February 15, 2008 which referenced 19 CFR 181.32 constituted a denial of post-importation NAFTA duty refund claim under 19 U.S.C. 1520(d), as the statements submitted in the November 9, 2007, letter were insufficient. The statements were not perfected within the one year of importation. Accordingly, the post-importation NAFTA duty refund claim was properly denied.
Please mail this decision to the internal advice applicant no later than sixty (60) days from the date of this letter. Sixty days from the date of this letter, the Office of International Trade: Regulations and Rulings will take steps to make the public version of this 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.
Sincerely,
Monika R. Brenner, Chief
Valuation & Special Programs Branch