Slip Op. 11-

UNITED STATES COURT OF INTERNATIONAL TRADE

FORD MOTOR COMPANY, Plaintiff,

v. UNITED STATES,

Defendant. Before: Judith M. Barzilay, Senior Judge

Court No. 03-00115

OPINION [The court grants Defendant’s motion for summary judgment.] Date: November 28, 2011 Grunfeld, Desiderio, Lebowitz , Silverman & Klestadt, LLP ( Ned H. Marshak , Robert B. Silverman , and Frances P. Hadfield ) and Paulsen K. Vandevert (Of Counsel), for plaintiff Ford Motor Company. Tony West , Assistant Attorney General; Barbara S. Williams , Attorney in Charge, International Trade Field Office, Comm ercial Litigation Branch, Civil Divi sion, United States Department of Justice ( Edward F. Kenny ); Office of Chief Counsel, International Trade Litigation, United States Customs and Border Protection ( Beth C. Brotman , Of Counsel), for defendant United States. BARZILAY, Senior Judge: This case return s to the court on remand from the Court of Appeals for the Federal Circuit. See Ford Motor Co. v. United States , 635 F.3d 550 (Fed. Cir. 2011). In its motion for summary judgment, Plaintiff Ford Moto r Company (“Ford”) challenges

U.S. Customs and Border Protecti on’s (“Customs”) denial of Ford ’s claims for reliquidation of

certain entries and a refund of duties pursuant to 19 U.S.C. § 1520( d). Pl.’s Br. 8-28. Defendant United States cross-moves for summary judgment, arguing that the § 1520(d) claims were untimely because Ford did not file its Nort h American Free Trade Agreement (“NAFTA”)Court No. 03-00115 Page 2

certificates of origin – a requis ite component of the claims – within one year of importation. 1 Def.’s Br. 5-15. Plaintiff responds that Customs’ regulation 19 C.F.R. § 10.112 excuses the late filing of its certificates. Pl .’s Br. 8-11, 13-20; Pl.’s Resp. 6- 15. The court has jurisdiction pursuant to 19 U.S.C. § 1581(a). For the reasons below, the cour t grants Defendant’s motion for summary judgment and denies Plain tiff’s motion for summary judgment. I. Background Between January 1997 and January 1999, Ford im ported certain automotive parts into the

United States from Canada. Def.’s Br. 2. The parties have agreed to use Entry No. 231- 2787386-9, imported on June 27, 1997, as a representative entry to resolve the legal issues before the court. Def.’s Resp. to Pl.’s Statement of Undisputed Material Fact s (“Undisputed Facts”) 1- 2. Ford did not at the time of entry assert that the goods were eligible for duty-free treatment under NAFTA and Customs liquidated the goods as entered. Undisputed Facts 2. On May 13, 1998, Ford electronically filed post-importation Claim No. 3801-98-351235 and therein sought a refund of the duties it paid and re liquidation of its entry pursuant to § 1520(d). Undisputed Facts 3. Ford did not submit copies of the certificates of origin for this entry until November 5, 1998, more than one year after the date of importation. Undisputed Facts 4. Cu stoms at the Port of Detroit denied Ford’s claim, st ating that “[t]he NAFTA Certifi cate of Origin was not furnished within one year of the date of importation.” Undi sputed Facts 5. Ford protested the denial of its § 1520(d) claim and Customs denied this pr otest on the same grounds on August 29, 2002. HQ 228654 (Aug. 29, 2002), available at 2002 WL 31641984. Ford challenged this denial before

1 Defendant also argues that Customs properly deni ed the protest on the grounds that Ford failed to make statements that satisfy the regulatory re quirements for a valid § 1520(d) claim. Def.’s Br. 15-16. Plaintiff counters that Ford’s statements substantially complied with the applicable regulations. Pl.’s Br. 24-28. Because the cour t finds that the claim was untimely, and thus otherwise invalid, it is unnecessa ry to reach this question.Court No. 03-00115 Page 3

the court. On January 12, 2010, the court held that it did not have jurisdiction to hear Ford’s suit on the grounds that Customs had not made a protes table decision in denying Ford’s refund claim. On March 21, 2011, however, the Federal Circuit reversed and remanded the case for further proceedings. See Ford Motor Co. , 635 F.3d 550.

II. Standard of Review An action warrants summary judgment “if the pleadings, discovery and disclosure materials on file, and any affidav its show that there is no genuine issue as to any material fact

and that the movant is entitled to judgment as a matter of law.” USCIT R. 56(c). “A material fact is one that might affect the outco me of the suit under the governing law.” Marriott Int’l Resorts, L.P. v. United States , 586 F.3d 962, 968 (Fed. Cir. 2009) (quoting Anderson v. Liberty Lobby Inc. , 477 U.S. 242, 248 (1986)) (interna l quotation marks omitted). The Court reviews Customs’ denial of a protest de novo . 28 U.S.C. § 2640(a)(1). A Customs decision does not enjoy a statutory presumption of corre ctness on questions of law,

Universal Elecs. v. United States , 112 F.3d 488, 492 (Fed. Cir. 1997), but may be entitled to “respect proportional to its ‘power to persuade.’” United States v. Mead Corp. , 533 U.S. 218, 220 (2001) (quoting Skidmore v. Swift & Co. , 323 U.S. 134, 140 (1944)). The degree of respect the Court accords “will depend upon the thoroughne ss evident in [Customs’] consideration, the validity of its reasoni ng, its consistency with earlier a nd later pronouncements, and all those factors which give it power to persua de, if lacking power to control.” Skidmore , 323 U.S. at 140.

III. Discussion Under NAFTA Article 502(3), importers may f ile post-importation claims for refunds of duties paid on goods that would have qualified fo r preferential tariff treat ment when entered. North American Free Trade Agreement art. 502(3), Dec. 17, 1992, 32 I.L.M. 289 (1993).Court No. 03-00115 Page 4

Congress codified this provisi on in § 1520(d), which, like Artic le 502(3), requires that refund claims be filed “within 1 year af ter the date of importa tion” and include (1) “a written declaration that the good qualified under the applicable rules at the time of importatio n,” (2) “copies of all applicable NAFTA Certificates of Origin,” a nd (3) “such other documentation and information relating to the importation of the goods as the Customs Service may require.” 2 § 1520(d)(1)-(3). As directed by the statute, Cust oms enacted implementing regulati ons that reaffirm the one-year time limitation on refund claims, see 19 C.F.R. § 181.31, and specify five requisite components of a claim, including copies of all certificates of origin for the entries, see § 181.32(b)(1)-(5). Plaintiff argues that § 1520(d) and the govern ing regulations do not require importers to file the certificates of origin within one y ear. Pl.’s Br. 11-12; Pl.’ s Resp. 13-14. Instead, Plaintiff interprets the time rest riction as applying only to § 1 520(d) “claims,” as distinguished from the accompanying certificates. 3 Pl.’s Br. 11-12; Pl.’s Resp. 13-14.

2 On October 21, 2011, while this case was pe nding before the court, Congress amended § 1520(d) to extend its applica tion to goods entered under three additional trade agreements. See United States – Panama Trade Promotion Agre ement Implementation Act, Pub. L. No. 112-43, § 206, 125 Stat. 487, 520 (2011); United States – Columbia Trade Promotion Agreement Implementation Act, Pub. L. No. 112-42, § 206, 125 Stat. 462, 484 (2011); United States – Korea Free Trade Agreement Implementation Act, Pub. L. No. 112-41, § 205, 125 Stat. 428, 449 (2011).

3 Much of the instant dispute arises out of a confusion regarding what constitutes a “claim” within the meaning of § 1520(d) and § 181.31. Plaint iff’s framing of the issue is understandable: A claim exists when the importer files a request with Customs for a refund of duties and alleges its goods qualified for duty-free treatment. A certificate of or igin must accompany, but is distinct from, the refund “claim.” See generally Pl.’s Br. The Federal Circuit, in holding that the court has jurisdiction, disti nguished between “notice of a pa rty’s § 1520(d) claim” and the accompanying “certificate of origin.” Ford Motor Co. , 635 F.3d at 557. The Federal Circuit limited its holding, however, to the issue of jurisd iction and explicitly re cognized the distinction “between the jurisdictiona l nature of the requirement that no tice of a § 1520(d) claim be timely filed . . . and the non-jurisdictional nature of a § 1520(d) claim’s content requirements such as certificates of origin.” Id. at 556 (noting “§ 1520(d)’s formalities, such as timely filing a certification of origin”). On remand, this court focuses on the substantive requirements for aCourt No. 03-00115 Page 5

Customs rejected this argument in its denial of Ford’s protest. See HQ 228654. There,

Customs found that a valid refund claim exists only when the importer has filed all the documentation that § 1520(d) and § 181.32(b)(1)-(5 ) require, including co pies of applicable certificates of origin. Id. at 7. Customs noted that no langua ge in the statute or regulations restricts the one-year limita tion to only the first element of th e claim, the written declaration. Id. ;

see § 1520(d)(1); § 181.32(b)(1). Foll owing this clear logic, Cust oms concluded that importers must file all components of a clai m, including copies of the certifi cates of origin, within one year of importation. 4 HQ 228654 at 7-8, 12-14. The analysis in HQ 228654 is thorough and well-reasoned. Customs grounded its conclusions in the plain language of § 1520( d) and §§ 181.31-.32 and responded adequately to Ford’s arguments on protest (some of whic h Ford now repeats before the court). See id. at 8-15. Notably, Customs’ interpretation accords with the court’s own, de novo reading of the relevant authority. The court therefore fi nds that HQ 228654 is entitled to Skidmore deference and that § 1520(d) and the implementing regulations requir e importers to file within one year of importation copies of applicab le certificates of origin. 5 Plaintiff avers that the one-year limitation cannot apply to all elements of a § 1520(d) claim because the final statutory element, § 1520(d)(3 ), requires importers to supply “such other documentation and information” that Customs may require. Pl.’s Br. 12-13. Ford reasons that

NAFTA refund claim. In that vein and as is discussed infra , the court adopts Customs’ position that copies of certificates of origin are neces sary components of a valid § 1520(d) claim.

4 Customs noted, however, that the certificates need not accompany the written declaration, so long as they are filed within one year of importation. HQ 228654 at 11.

5 The court agrees with Defendant that Plainti ff’s reference to Customs’ Reconciliation Program, which waives the necessity of subm itting certificates of or igin with refund claims, is inapposite. Def.’s Resp. 16-18. Plaintiffs’ entries were not subject to the program and the court’s inquiry must focus on the statutory and regulatory sc heme which governed Plaintiff’s entries.Court No. 03-00115 Page 6

Customs could request additional information from importers pursuant to this subsection more than one year after importation and that, as a result, the court cannot interpret the one-year requirement as extending to all elements of th e claim. Pl.’s Br. 12-13. As noted, Customs has already enumerated the requisite “other docum entation and information” in subsections (3) through (5) of § 181.32(b). See § 181.32(b)(3)-(5); s ee also HQ 228654 at 14. These subsections require the importer to file certain information regard ing third parties’ knowledge of the entries and other existing claims and protests. See § 181.32(3)-(5). Importers must similarly

file these statements within one year of importation. See id. ; see also HQ 228654 at 14. This argument is therefore unavailing.

The court turns next to Plain tiff’s argument that § 1520(d) mu st be read in harmony with Customs’ regulation § 10.112. Because the statute di rects that refund claims be administered “in accordance with regulations prescribed by [Custo ms],” Plaintiff maintains that § 10.112 applies and excuses the untimely filing of its certificates of origin. Pl .’s Br. 8-11, 13-20; Pl.’s Resp. 6- 15. Section 10.112 provides that [w]henever a free entry or a reduced duty doc ument, form, or statement required to be filed in connection with the entry is not filed at the time of the entry or within the period for which a bond was filed for its production, but fa ilure to file it was not due to willful negligence or fraudulent intent, such document, form, or statement may be filed at any time prior to liquidation of the entry or, if the entry was liq uidated, before the liquidation becomes final. 19 C.F.R. § 10.112. The Court has previously found that this “remedial regulation” deserves broad interpretation. See, e.g. , Gulfstream Aerospace Corp. v. United States , 21 CIT 1083, 1096-97, 981 F. Supp. 654, 667 (1997) (“ Gulfstream ”); Aviall of Tex., Inc. v. United States , 18 CIT 727, 732-33, 861 F. Supp. 100, 105 (1994) (“ Aviall ”). The Federal Circuit has cautioned, however, “that an importer cannot use section 10.112 to circumvent the clear mandate ofCourt No. 03-00115 Page 7

NAFTA and 19 U.S.C. § 1520(d) . . . .” Xerox Corp. v. United States , 423 F.3d 1356, 1365 (Fed. Cir. 2005) (“ Xerox ”). In deciding whether § 10.112 applies to the NAFTA refund scheme governed by § 1520(d) and §§ 181.31-.32, the court must “attempt to give full effect to all words contained within th[e] statute [and] regulation[s], thereby re ndering superfluous as little of the statutory or regulatory language as possible.” Glover v. West , 185 F.3d 1328, 1332 (Fed. Cir. 1999); accord

Duncan v. Walker , 533 U.S. 167, 174 (2001) (“It is our duty to give effect, if possible, to every

clause and word of a statute.” (citation and quotation marks omitted)). For this reason, Plaintiff’s argument fails. Adopting Plaintiff’s position (t hat § 10.112 allows an importer to file its certificates of origin more than one year after importati on) would force the court to read out of the statute and regulations the clear instruction that importers must file “within 1 year after the date of importation . . . a claim that includes . . . copies of all applicable NAFTA Certificates of Origin.” § 1520(d); accord § 181.31, .32(b)(2). The importance to the NAFTA refund scheme of these two requirements – that (1) claims be f iled within one year and (2) include copies of certificates of origin – is obvious. These obligations are thrice repeated in NAFTA, the corresponding statute, and Customs’ implementing regulations. Moreover, the legislative history of § 1520(d) “overwhelmingly reiterates the one -year time period for claiming entitlement to a refund premised on NAFTA eligibility.” Xerox Corp. , 423 F.3d at 1362; see H.R. Rep. No. 103- 361(I), at 38 (1993) (“In order to qualify for such reliquida tion, the importer must, within one year after the date of importa tion, file a NAFTA claim in accordance with the implementing regulations, which includes . . . copies of all app licable NAFTA certificates of origin . . . .”); S. Rep. No. 103-189, at 22 (1993) (same). The c ourt cannot read § 10.112 to ease the contentCourt No. 03-00115 Page 8

requirements for claims under § 1520(d) and § 181.31-.32 as it would render fundamental aspects of the statut e and regulations void. 6 This conclusion is bolstered by the nature of the regulations at issu e. In balancing the strict one-year requirement of § 181.31 with th e permissive allowance of § 10.112, the court must prefer the specific regul ation to the general one. See Arzio v. Shinseki , 602 F.3d 1343, 1347 (Fed. Cir. 2010) (“A basic tenet of statutory construction is that a specific statute takes precedence over a more general one. . . . This canon of construction applies to the interpretation of regulations as well as stat utes.”). Customs drafted § 181.31 to apply expressly to postimportation claims for refunds of duties in cases where no claims for prefer ential tariff treatment were filed at entry. In so doing, Customs draf ted the regulation to mirror the requirements provided by the statute, which, in turn, mirrors NAFTA Article 502(3). 7 In contrast, § 10.112, enacted in 1960, is a broad provision with undefined boundaries which makes no reference to NAFTA refund claims or reliquidation. See § 10.112. Sections 181.31 and 181.32 undoubtedly

control over this more general regulation. Unfortunately for Plaintiff, reliance upon Aviall and Gulfstream is unhelpful in this

context. Pl.’s Br. 17-20. While these cases highlight the broad reach of § 10.112, including its preeminence over other (mandatory) regulatory provi sions, neither address the issue of whether

6 Defendant argues that § 10.112 is inapplicable because the regulation covers only forms and documents required at the time of entry , which NAFTA certificates of or igin are not. Def.’s Br. 11-14; Def.’s Reply 8-12. The court is skeptical of this interpretation as it is at variance with the plain language of the regulation and app ears to be needlessl y restrictive. See § 10.112. Nevertheless, because § 10.112 otherwise does not cover certificates of origin required for § 1520(d) claims, the court need not resolve this issue.

7 Section 181.33 also explicitly addresses Cust oms’ authority to deny NAFTA refund claims: “The port director may deny a claim for a refund filed under this subpart if the claim was not filed timely, [or] if the importer has not complied with the requireme nts of this subpart . . . .” § 181.33(d)(1).Court No. 03-00115 Page 9

§ 10.112 would apply if its applic ation would render meaningless statutory (and treaty-based) requirements. 8 See Gulfstream , 21 CIT at 1096-97, 981 F. Supp. at 667; Aviall , 18 CIT at 732- 33, 861 F. Supp. at 105. As discussed, the court believes that it cannot. Accordingly, § 10.112 does not excuse the late filing of NAFTA certif icates of origin for § 1520(d) refund claims.

IV. Conclusion The court recognizes that, in attempting to obtain preferential tari ff treatment, Ford was operating in a nascent legal regime with fastidious ru les for importation. N onetheless, the court must respect Customs’ lawful adherence to th e controlling statute a nd regulations. For the reasons stated, it is hereby

ORDERED that Defendant’s motion for summary judgment is granted, and it is further

ORDERED that Plaintiff’s motion for summary judgment is denied. Dated: November 28, 2011 /s/ Ju dith M. Barzilay New York, NY Judith M. Barzilay, Senior Judge

8 Unlike Aviall and Gulfstream , the court in Corrpro Cos. v. United States , 28 CIT 1523 (2004) (not reported in F. Supp.), rev’d on other grounds , 433 F.3d 1360 (Fed. Cir. 2006) (“ Corrpro ”), squarely addressed the issue of whether § 10.112 excu ses the late filing of certificates of origin for § 1520(d) purposes. Adopting the reasoning in Aviall that § 10.112 “does not limit its application to certain documents” and should be interpreted broadly, th e court held that § 10.112 applies to NAFTA refund claims: “[T]he Cour t holds that 19 C.F.R. § 10.112 supercedes 19 C.F.R. §§ 181.31 and 181.32 . . . . [U]nder [§ 10.112], Corrpro may submit its NAFTA Certificates of Origin at any time prior to li quidation, barring willful negligence or fraudulent intent in compliance.” Corrpro Cos. , 28 CIT at 1532. The Federal Circuit reversed this holding on alternative (jurisdi ctional) grounds. See Corrpro Cos. , 433 F.3d 1360. Only in dicta did the Federal Circuit discuss the requirements for a § 1520(d) claim: “In order to make a valid NAFTA claim, an importer must submit a written declarati on and the appropriate Certificates of Origin. An importer may not circumvent these st atutory and regulatory requirements.” Id. at 1365 (internal citations omitted); accord Xerox Corp. , 423 F.3d at 1365 (“Simply put, we may not construe 19 C.F.R. § 10.112 to increase the on e-year time period for making a post-importation NAFTA claim and thus increase the Court of Intern ational Trade’s jurisdiction . . . .”). The court believes the Federal Circuit’s dicta in Corrpro and its jurisdic tional holding in Xerox , while not controlling, nevertheless cancel the persuasive weight the c ourt would normally give to a previous decision by this Court. See Nucor Corp. v. United States , 32 CIT __, ___, 594 F. Supp. 2d 1320, 1380 n.47 (2008) (noting that “intervening ch anges in governing law necessarily affect the persuasive authority of previ ous decisions of the [Court]”).