> HQ 229426
>
> August 29, 2002
>
> Liq-9-RR:CR:DR
>
> 229426 CK
>
> Category: Liquidation
>
> Port Director of Customs
>
> Attn: Edward Ellsworth
>
> 9901Pacific Highway
>
> Blaine, WA 98230
>
> RE: Protest and AFR No. 3004-01-100104; Post-Importation NAFTA claim;
> 19 U.S.C. 1520(d); 19 U.S.C. 1514; 18 CFR 181.32(b)(3); 181.33
>
> Dear Sir:
>
> The above-referenced protest, received by your office on December 18,
> 2001, was forwarded to our office as an Application for Further Review
> of Protest No. 3004-01-100104. We also received, on February 15, 2002,
> your transmittal memorandum dated January 4, 2002, regarding this AFR.
> We have considered the facts and the issue raised; our decision
> follows.

**FACTS:**

> Protestant, Livingston International, Inc., imported and entered 2
> line items of merchandise (Entry \# 759-6) on December 12, 2000. The
> first line item was entered as "struct, stn stl: doors, wnds, frms,"
> the country of origin was listed as XA, and classified in subheading
> 7308.30.1000, HTSUS. The second line item of merchandise was described
> as "Struct, stn stl: doors, wnds, frms," the country of origin was
> listed as MX and classified in subheading 7308.30.1000, HTSUS.

On January 24, 2001, Protestant filed with the Port of Blaine, WA a
post-importation NAFTA claim (19 U.S.C. 1520(d)), number 3004-01-300047.
This 19 U.S.C. 1520(d), post-importation NAFTA claim was received by the
port on January 29, 2001. In that claim Protestant states that line item
1 from entry 759-6 should have been "CA7308.30.1000," and that line item
2 should have been "MX8425.11.0000." Protestant also made the following
certifications:

1.  The merchandise qualified as originating at the time of importation.

2.  A copy of the NAFTA Certificate of Origin is attached.

3.  We are not aware of any claim or refund, waiver of duty reduction of
    duties relating to the goods under Article 303 of the NAFTA
    agreement.

4.  No person has filed a petition or protest or requested reliquidation
    relating to the good under any provision of law.

5.  To the best of our knowledge and belief, the above referenced entry
    is not the subject of a Drawback claim nor has it been referenced on
    a Certificate of Delivery or Certificate of Manufacture and
    Delivery.

Attached to the January 24, 2001 post-importation NAFTA claim is a
blanket certificate of origin for the period of January 1, 2000 to
December 31, 2000, signed and dated January 1, 2000. The certificate of
origin has four line items, three are at issue: the first is "overhead
doors, parts and accessories, classifiable as 7308.30, HTSUS;
Residential openers c/w rail, classifiable as 8425.11.0000, HTSUS; and
commercial door operators and controls, classified as 8425.11.0000,
HTSUS.

Also attached is a copy of New York ruling NY F81926 dated February 7,
2000 classifying a Superlift garage door opener in subheading
8428.90.0090, HTSUS.

Attached to the above documents is a second blanket certificate of
origin for the period of January 1, 2000 to December 31, 2000, signed
and dated January 1, 2000. The certificate of origin has four line
items, three are at issue: the first is "overhead doors, parts and
accessories, classifiable as 7308.30, HTSUS; Residential openers c/w
rail, classifiable as **8428.90, HTSUS**; and commercial door operators
and controls, classified as **8428.90, HTSUS**.

The port denied the post-importation NAFTA claim on March 1, 2001. Claim
3004-01-300047 was denied for claimant's failure to make the
certification found in 19 CFR 181.22(b)(3), which requires a claimant to
make a statement whether "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."

The merchandise in entry 759-6 liquidated on October 26, 2001 as
entered. Therefore the first line item was liquidated as "struct, stn
stl: doors, wnds, frms," classified as 7308.30.1000, HTSUS. The second
line item of merchandise liquidated as "Struct, stn stl: doors, wnds,
frms," classified as 7308.30.1000, HTSUS. The first line item was not
given NAFTA preference, and the second line item liquidated with the
original classification, and again without NAFTA preference.

Protestant filed the current protest (3004-01-100104) dated December 13,
2001, it was received by the port on December 17, 2001. Protest is made
against the denial of the post-importation NAFTA claim (19 U.S.C.
1520(d)), which resulted in the entry liquidating at a non-NAFTA rate of
duty. Second, Protestant makes the following statement: "Therefore, in
addition to the facts presented in the January 24, 2001 claim, we hereby
certify that in accordance with 19 CFR 181.32(b)(3), to our knowledge,
the importer of the good has not provided a copy of the entry summary or
equivalent documentation to any person." Third, Protestant also protests
the classification of line item 2, which it claims should have
liquidated as "MX8428.90.0090."

The port states in the CF6445A, that the protest should be denied
because the claimant failed to supply the statement in 19 CFR
181.22(b)(3). The port states that protest 3004-01-100104 perfected the
1520(d) claim, but it was filed one year and five days after the date of
entry, so it would be untimely as a 1520(d) claim. Additionally, Customs
does not have the authority to waive or extend the one-year time period
and 19 U.S.C. 1514 cannot be used to extend the one-year time period.
However, we also note that the port concedes the classification of the 1
model T5011 door openers and accessories, and 32 residential openers and
accessories as classified in subheading 8428.90.0090, HTSUS, and that
issue is not in dispute.

**ISSUE:**

Should the protest under 19 U.S.C. 1514 be granted where the protest is
against the denial of a post importation NAFTA claim under 19 U.S.C.
1520(d) which resulted in the liquidation of the merchandise at a
non-NAFTA rate of duty?

**LAW AND ANALYSIS:**

As we noted, the liquidation of the entry occurred on October 26, 2001
and Livingston filed its protest against the denial of its
post-importation NAFTA claim (19 U.S.C. 1520(d)) on December 13, 2001.
We find, therefore that the protest was timely filed within the
ninety-day period pursuant to 19 U.S.C. 1514(b)(5).

A claim for preferential tariff treatment under the NAFTA may only be
made either at (1) the time of filing the entry as per 19 C.F.R. 181.21
or (2) after the filing of the entry, as a post- importation claim
pursuant to 19 U.S.C. 1520(d). Under Section 1520(d), Customs may
[reliquidate]{.underline} an entry to refund any excess duties paid on a
good qualifying under NAFTA rules of origin for which no claim for
preferential tariff treatment was made at the time of importation
provided that the request is submitted [within one year]{.underline}
from the date of importation.

Under 19 C.F.R. section 181.32(b), a post importation duty refund claim
must include:

(1) 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;

(2) Subject to 181.22(d) of this part, a copy of each Certificate of
    Origin (see section 181.11of this part) pertaining to the good;

(3) Written statement indicating whether or not the importer 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 documentation was
    provided;

(4) 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
    (see subpart E). If the importer is aware of any such claim the
    statement shall identify the person who made the claim by name,
    Customs identification number and address; and

(5) 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, petition
    or request for reliquidation has been filed, the statement shall
    identify the protest, petition or request by number and date.

Section 181.31 of the Customs Regulations sets out the right to make a
post-importation NAFTA claim. That section provides that the claim shall
be made according to the procedures in 181.32, *see above*, and the
claims are subject to the provisions of section 181.23 of this part.

Section 181.23 of the Customs Regulations states that failure to comply
with any requirement under this part is cause for the port director to
deny preferential tariff treatment to an imported good. Failing to make
the certification statements found in 19 CFR 181.32(b) would be a reason
to deny a post-importation NAFTA claim, but only if that failure caused
the claim to be perfected beyond one-year after the date of importation.

Article 502.3 of the NAFTA provided for a post-importation NAFTA claim.
[See]{.underline}, H. Doc. 103-159, Vol. 1, 912 (November 4, 1993).

That provision (Article 502.3) was implemented by 19 U.S.C. 1520(d).
[See]{.underline}, [Statement of Administrative Action]{.underline}, H.
Doc. 103-159, Vol. 1. 507 (November 4, 1993).

The statute (19 U.S.C. 1520(d)) was implemented by the *Interim Rule*,
58 F.R. 69460, 69476, and the *Final Rule*, 60 F.R. 46334 (September 6,
1995), following consideration of comments received on the interim rule.
In response to one of the comments regarding the certification
statements, Customs stated:

> The written statement requirements for post-importation claims are
> designed to prevent an overpayment of a duty refund such as drawback.
> Customs notes that there are parallel NAFTA requirements for drawback
> and duty deferral program participants under Part 181 (see §§181.47(b)
> and (c) and §181.53(a)(3)). Accordingly, Customs believes that these
> requirements must be retained.

Customs was within its authority when it added the five certification
statements in its regulations (19 CFR 181.32(b)). Section 1520(d) of
Title 19 of the United States Code states that Customs may require any
additional documents that are necessary to the claim. Regulations
promulgated by Customs to implement and administer statutes,
specifically where Congress has granted an exception for an importer,
have been held to be a reasonable exercise of Customs authority.
Additionally, numerous courts have agreed with Customs that strict
compliance with the regulations is a condition precedent for an importer
who seeks to avail themselves of statutory exceptions.

In [Nestle\'s Food Co. (Inc.) v. United States]{.underline}, 16 Ct.
Cust. Appl. 451, 455 (1929), a drawback claimant failed to comply with
the Customs Regulations requiring notice of exportation, and Customs
denied the drawback claim. The court in agreeing with Customs that
Customs may promulgate regulations that interpret and implement statutes
so as to administer such statutes stated:

> In the case of *Spencer, Kellogg & Sons (Inc.)* v. *United States,* 13
> Ct. Cust. App. 612, T.D. 41459, we said:\
> \
> Reasonable regulations of the Secretary of the Treasury made in
> pursuance of law, have the force and effect of law. *Penick & Ford
> (Ltd., Inc.)* v. *United States,* 12 Ct. Cust. App. 432, T. D. 40611,
> and cases therein cited; *Lunham* v. *United States,* 1 Ct. Cust. App.
> 220, T. D. 31258; *Stone & Co.* v. *United States,* 7 Ct. Cust. App.
> 439, T. D. 37009; *United States* v. *Bracher et al.,* 13 Ct. Cust.
> App. 432, T.D. 41344.\
> \
> The appellant does not contend that the involved regulations of the
> Secretary of the Treasury are unreasonable, but contends that they
> have been substantially complied with. In our opinion, the regulations
> requiring notice of intent to export are mandatory and compliance
> therewith is a condition precedent to the right of the appellant to
> recover under the drawback provisions. Such regulations may not be
> disregarded and proof of exportation made in some other manner than
> that required by them. *Lunham* v. *United States, supra; Agency
> Canadian Car & Foundry Co.* v. *United States,* 10 Ct. Cust. App. 172,
> T. D. 38547; \[\*456\] *Agency Canadian Car & Foundry Co.* v. *United
> States,* 11 Ct. Cust. App. 19 T.D. 38637.

The Court in [United States v. Gruen Watch Co.]{.underline}, 21 C.C.P.A.
225, 229 (1933), which involved a case where a drawback claim was denied
for failure to export the merchandise within the two years required by
statute stated:

> Congress has evidenced a disposition to rely very largely, in customs
> legislation, upon the Treasury Department for the promulgation of
> rules and regulations which would make possible the proper application
> of the laws.
>
> \* \* \* \* \* \* \* \* \* \*
>
> The regulations so promulgated should not be stricken down or held
> invalid unless it clearly appears that they are unreasonable or made
> outside of the authority granted. *Fawcus Machine Co. v. United
> States, 282 U.S. 375, 378, 75 L. Ed. 397, 51 S. Ct. 144.*

[Id.]{.underline}

The Court when on further to say that:

> \[T\]he rule is deduced that where the Congress has offered some
> special grace or exemption to an importer, under regulations to be
> promulgated, the importer must strictly comply with such regulations,
> so long as they be reasonable and do not seek to alter, add to, or
> detract from the statute itself.

[Id.]{.underline} at 230.

Another case in which Customs and the courts enforced strict compliance
with statutory and regulatory requirements is [Washington International
Insurance Co. v. United States,]{.underline} 13 CIT 112, 707 F. Supp.
561 (1989). The court in that case found the requirement for this
certification (that a protest under 19 U.S.C. 1514 is not being filed
collusively with a surety) to be an absolute, jurisdictional
requirement, noting that \"\[it (i.e., the Court) was\] hard-pressed to
conceive of what such a reason \[i.e., for not complying with the
certification requirement\] might be.\" (13 CIT at 115; see also Note 8,
id, \"This court finds no per se rule allowing omission of certification
in such circumstances \[i.e., when the importer was not locatable\].\")

In contrast however, there are several judicial decisions, which limit
the scope of Customs authority under 19 U.S.C. §1313 to the plain
language of the statute. In [The B.F. Goodrich Company v. United
States]{.underline}, 794 F. Supp. 1148, 16 CIT 333 (1992), the Court of
International Trade concluded that Customs cannot infer a purpose from
the design of the drawback statute taken as a whole. In [B.F.
Goodrich]{.underline}, the court rejected Customs interpretation that
the drawback statute, 19 U.S.C. §1313(j)(2), required actual possession
of the imported merchandise based on a reading of the clear language of
the statute because the statutory text contains no such provision. [See
also Central Soya Co., Inc. v. United States]{.underline}, 761 F. Supp.
133, 15 CIT 105 (1991) (Customs cannot require that the drawback
claimant be the exporter of the substituted merchandise because no such
text was present in the statute); [and 718 Fifth Avenue v. United
States, supra]{.underline} (Customs cannot restrict attempts to claim
drawback by a series of importation/exportation cycles because the court
found that Customs had stipulated that the good on that last export met
every textual requirement of the statute)*.*

Section 1520(d) (19 U.S.C. 1520(d)), and the implementing regulations,
19 CFR 181.32 provides an exception to the usual entry requirements for
an importer in that a claimant may make a post-importation NAFTA claim.
Strict compliance with the certification statements, as stated above,
under the holdings in [Nestle's Food Co., Gruen Watch Co.,]{.underline}
and [Washington International]{.underline}, are a condition precedent to
the granting of a claim.

Applying the analysis to the current case, the regulatory provision (19
CFR 181.32(b)(3)) requires the claimant to certify whether a copy of the
entry summary or equivalent documentation was provided to any other
person. The only language in the claim papers filed on January 29, 2001
that might cover the requirement is item 5: "To the best of our
knowledge and belief the above-referenced entry is not the subject of a
drawback claim nor has it been referenced on a certificate of delivery
or certificate of manufacture and delivery." The regulatory requirement
calls for a broader certification than the one given by the claimant, a
certification is required that states, "Written statement indicating
whether or not the importer 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 documentation was provided."

A claimant who does not make the required certification could provide a
copy of the entry to another person and truthfully state the entry is
not the subject of a drawback claim. That other person could thereafter
file a drawback claim without the claimant's knowledge.

In any event, the claimant in the protest concedes that the required
certification was not made on the papers filed January 29, 2001. The
protest contains the statement: "Therefore, in addition to the facts
presented in the January 24, 2001 claim, we hereby certify that in
accordance with 19 CFR 181.32(b)(3), to our knowledge, the importer of
the good has not provided a copy of the entry summary or equivalent
documentation to any person."

In summary, a post-importation NAFTA claim was submitted and upon review
of the import specialist, the claim was denied because it lacked the
certification statement required under section 181.32(b)(3). The
statement was eventually submitted with the CF19 protest form. The
submission was complete on the date the CF 19 was received by Customs on
December 17, 2001. Consequently a complete post-importation NAFTA claim
was not perfected until one year and five days after the importation.
Therefore, the perfected 1520(d) claim was not made within one year of
importation and is therefore untimely. Failing to make a timely
post-importation NAFTA claim is a valid reason to deny a claim under 19
CFR 181.33(d)(1). The protest under 19 U.S.C. 1514 of the denial of the
post-importation NAFTA claim should be [denied]{.underline} because the
perfected post-importation NAFTA claim was untimely.

**HOLDING:**

The Protestant in this case failed to perfect its claim within one-year
of December 12, 2000. Instead, the claim was perfected on December 17,
2001, one year and five days after the date of importation, and
therefore, the post-importation NAFTA claim under 19 U.S.C. 1520(d) is
untimely. The protest under 19 U.S.C. 1514 of the denial of the
post-importation NAFTA claim should be [denied]{.underline} because the
perfected post-importation NAFTA claim was untimely.

The protest is **denied**. In accordance with Section 3A(11)(b) of
Customs Directive 099 3550‑065, dated August 4, 1993, Subject: Revised
Protest Directive, you are to mail this decision, together with the
Customs Form 19, to the protestant no later than 60 days from the date
of this letter. Any reliquidation of the entry or entries 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 make the decision available to Customs personnel, and to the public
on the Customs Home Page on the World Wide Web at www.customs.gov, by
means of the Freedom of Information Act, and other methods of public
distribution.

Sincerely,

Myles Harmon, Acting Director

> Commercial Rulings Division