Protest and Application for Further Review of no. 2402-97-100039; 19 U.S.C. 1520(d); Post-importation NAFTA claim;

HQ 227879 October 30, 1998 LIQ-9-RR:CR:DR 227879 CK CATEGORY: Reliquidation Port Director of Customs U.S. Customs Service 797 South Zaragosa Road El Paso, Texas 79907 Attn: Kevin Cleere, Import Specialist RE: Protest and Application for Further Review of no. 2402-97-100039; 19 U.S.C. 1520(d); Post-importation NAFTA claim; Dear Sir: The above-referenced protest was forwarded to our office for further review. We have considered the points raised by your office and the importer. Our decision follows: FACTS: General Motors Corporation (GMC) filed a protest on August 8, 1997 in response to the June 9, 1997 denial of their request for reliquidation by the Port of El Paso. The Port of El Paso refused to reliquidate and refund, duty paid in the amount of $2400.65 collected on entry number 665-xxxx051-8. The attached CF 6445A lists: the date of protest- 08/08/97; entry number- 665-xxxx051-8; date of purchase or order- 02/10/97; name of manufacturer and seller- Products Delco; city of origin- Chihuahua; country of origin- Mexico; name of consignee- Delco Chassis Div.; location of consignee- El Paso, Texas; exported from- CD Juarez Chih, Mexico; date of exportation- 02/10/96; and date of importation- 02/10/96. The subject of the protest is the following: Description of the Merchandise Protester's Claimed Value or Classification Appraised Value or Classification DC Electric Motors MX8501.31.4000 @ Free 8501.31.4000 @ 4.6% The Port Director of El Paso denied the request for reliquidation claiming that the period within which the importer has to file claims pursuant to 19 U.S.C. 1520(d) begins on the date of importation. The Port's position is that this claim is untimely because the date of importation of entry 665-xxxx051-8, namely 02/10/96, means that the last day for a timely section 1520 (d) claim would have been 02/09/97, and the claim was filed on 02/10/97. The attached CF 19 lists General Motors Corporation as the importer and protesting party, the date of entry as 02/10/96, the entry being protested as 665-xxxx051-8, and the date of the protest as August 8, 1997. GMC filed a claim by letter, on February 10, 1997, regarding a NAFTA Refund under 1520(d). GMC argues that the term "1 year after the date of importation," (19 U.S.C. 1520(d)) means that the 1 year begins either on, or one day after, the date of importation, February 10, 1996, and ends after the close of Customs business on February 10, 1997. The Protestant argues the post importation NAFTA claim was timely filed for entry 665-xxxx051-8, on February 10, 1997. Attached to the file is a letter, date stamped received by the U.S. Customs Service, Port of El Paso, on February 10, 1997. The letter is on GMC stationery, making a Post-Importation NAFTA claim and request for refund of duties in the amount of $6,118.23, for the period of 02/10/96 to 02/15/96. With this letter is a printout of four entries, the import date, and the duty refund sought. The protested entry is the first entry listed on the page. Also attached is a reply from the El Paso port, allowing in part, and denying in part GMC's claim for refund. Three of the entries were reliquidated and duty refunded, however, the protest entry was denied as untimely. The attached CF 7501 for entry number 665-xxxx051-8, lists as the importer and consignee of record a, GMC, Delco Chassis Div.; entry date as 02/10/96, export date as 02/10/96; exporting country as MX; country of origin as Multi; and there are 7 lines of merchandise listed. The merchandise that is the subject of this protest are found on lines 3 and 6. Line 3 states, DC Motors, HTSUS 8501.31.4000, net quantity of 9252.00 NO, entered value of $26,727.00, with an ad valorem rate of 4.6%, with a duty of $1229.44. Line 6 states, DC Motors, HTSUS 8501.31.4000, net quantity of 8754.00, entered value of $25,461.00, with an ad valorem rate of 4.6%, with a duty of $1171.21. Also provided is a printout entitled, "consolidation sheet", for entry date 02/10/96, entry number 665-xxxx051-8, GMC, Delco Chassis Div. The sheet list 18 lines of merchandise, and is grouped into 4 sets by invoice number. Two different invoices refer to the protest merchandise. Invoice numbers 904xxxx-7 / PT-001459, has 4 lines of the protested merchandise: N/D value N/D number Duty value Harmonized code Quantity Part number $53,788.68 9802.00. 8065 $13,363.36 8501.31. 4000 4624.00 18022245 $58,834.85 9802.00. 8065 $13,363.36 8501.31. 4000 4624.00 18024097 $1.07 9802.00. 8065 $.38 8501.31. 4000 2.00 22091947 $1.07 9802.00. 8065 $.38 8501.31. 4000 2.00 22104778 The second invoice referencing the protest merchandise is PT-001460, has 5 lines of the protested merchandise: N/D value N/D number Duty value Harmonized code Quantity Part number $72,772.92 9802.00. 8065 $18,079.84 8501.31. 4000 6256.00 18022245 $13,843.49 9802.00. 8065 $3,144.32 8501.31. 4000 1088.00 18024097 $15,697.25 9802.00. 8065 $3,930.40 8501.31. 4000 1360.00 18024187 $1087.43 9802.00. 8065 $249.00 8501.31. 4000 30.00 18024444 $230.84 9802.00. 8065 $57.80 8501.31. 4000 20.00 18024481 The second page of the printout has a summary for each invoice number. Invoice number PT-001459 has a total duty amount of $26,727.48, with a total quantity amount of 9252.00. Invoice number PT-001460 has a total duty amount of $25,461.36, with a total quantity amount of 8754.00. Also included is an Entry/Immediate Delivery sheet, with entry number 665-xxxx091-7, listing 4 lines of merchandise, and the last line is the protested merchandise- 8501.31.4000 MX. Included also, are printouts of the invoices themselves which are entitled, "PRODUCTOS DELCO DE CHIHUAHUA, SA DE CV." One is entry number 665-xxxx091-7, invoice number PT-001459, and is dated February 10, 1996, which covers the merchandise listed on line 3 of the CF 7501. The first product listed is: 153 trays of part number 18022245, which is AntiLock Breaking System Assembly, total quantity of 4,624, a billing price of $13,363.36, and it consists of: Desc. Class: Duty rate Unit value Total value Comp-onent value Packing value Dutiable 9801.00.1098 Free .01310 60.57 60.57 8501.31.4000- 668.16 5% 2.89000 13363.36 13363.36 9802.00.8065 Free 11.63250 53788.68 53788.68 The second product listed is: 153 trays of part number 18024097, which is AntiLock Breaking System Assembly, total quantity of 4,624, has a billing price of $13,363.36, and consists of: Desc. Class: Duty rate Unit value Total value Comp-onent value Packing value Dutiable 9801.00.1098 Free .02380 110.05 110.05 8501.31.4000- 668.16 5% 2.89000 13363.36 13363.36 9802.00.8065 Free 12.72380 58834.85 58834.85 The third product listed is: 1 box of part number 22091947, which is AntiLock Breaking System Assembly, total quantity of 2, has a billing price of $.38, and consists of: Desc. Class: Duty rate Unit value Total value Comp-onent value Packing value Dutiable 9801.00.1098 Free .02380 .04 .04 8501.31.4000- .01 5% .19200 .38 .38 9802.00.8065 Free .53853 1.07 1.07 The fourth product listed consists of part number 22104778, which is AntiLock Breaking System Assembly, total quantity of 2, has a billing price of $.38, and consists of: Desc. Class: Duty rate Unit value Total value Comp-onent value Packing value Dutiable 9801.00.1098 Free .02380 .04 .04 8501.31.4000- .01 5% .19200 .38 .38 9802.00.8065 Free .53853 1.07 1.07 Attached is an unsigned document with the heading, "BODEGA, PRODUCTOS DELCO DE CHIHUAHUA, SA DE CV, " dated Friday, February 9, 1996. It also states, "DELCO CHASSIS D, trl # 601689, 003749." The pages contains a chart which includes the following information: Numero Parte; Clase Cant Descrip-cion Cada Total P. Br. P. Nt. 22104778 Anti-lock breaking Sys. Ass. 2 2 1 1 22091947; Box 1 Anti-lock breaking Sys. Ass. 2 2 1 1 18022245; Trays 144 Anti-lock breaking Sys. Ass. 30 4,352 9,611 8,818 18022245; Trays 9 Anti-lock breaking Sys. Ass. 30 272 601 551 18024097 153 Anti-lock breaking Sys. Ass. 30 4,624 13,798 12,658 Finally, also attached is a "FOREIGN ASSEMBLERS DECLARATION," for invoice number PT- 001459, signed by a Customs broker on behalf of the Chihuahua plant that the AntiLock Breaking System Assembly was assembled in whole or in part from the fabricated components as follows: on 10/03/95- parts 22091947, 22104778, and on 10/05/95- parts 18022245, 18022245, and 18024097, totaling 9,252 pieces. The statement is signed and dated, February 10, 1996. In regards to the merchandise listed on line 6 of the CF 7501, submitted as evidence is an Entry/Immediate Delivery sheet, with entry number 665-xxxx092-5, listing 4 lines of merchandise, and the last line is the protested merchandise- 8501.31.4000 MX. Included is a printout of the invoice which is entitled, "PRODUCTOS DELCO DE CHIHUAHUA, SA DE CV." One is entry number 665-xxxx092-5, invoice number PT-001460, and dated February 10, 1996. The first product listed is: 207 trays of part number 18022245, which is AntiLock Breaking System Assembly, total quantity of 6,256, has a billing price of $18,079.84, and consists of: Desc. Class: Duty rate Unit value Total value Comp-onent value Packing value Dutiable 9801.00.1098 Free .01310 81.95 60.57 8501.31.4000- 903.99 5% 2.89000 18079.84 18079.84 9802.00.8065 Free 11.63250 72772.92 72772.92 The second product listed is: 36 trays of part number 18024097, which is AntiLock Breaking System Assembly, total quantity of 1,088, has a billing price of $3,144.32, and consists of: Desc. Class: Duty rate Unit value Total value Comp-onent value Packing value Dutiable 9801.00.1098 Free .02380 25.89 25.89 8501.31.4000- 157.21 5% 2.89000 3,144.32 3,144.32 9802.00.8065 Free 12.72380 13843.49 13843.49 The third product listed is: 45 trays of part number 18024187, which is AntiLock Breaking System Assembly, total quantity of 1,360, has a billing price of $3,930.40, and consists of: Desc. Class: Duty rate Unit value Total value Comp-onent value Packing value Dutiable 9801.00.1098 Free .01310 17.81 17.81 8501.31.4000- 196.52 5% 2.89000 3,930.40 3,930.40 9802.00.8065 Free 11.54210 15697.25 15697.25 The fourth product listed consists of part number 18024444, which is EHA-1, total quantity of 30, has a billing price of $249.00, and consists of: Desc. Class: Duty rate Unit value Total value Comp-onent value Packing value Dutiable 9801.00.1098 Free .01310 .39 .39 8501.31.4000- 12.45 5% 8.30000 249.00 249.00 9802.00.8065 Free 36.24780 1,087.43 1,087.43 The fifth product listed is: 2 trays of part number 18024481, which is AntiLock Breaking System Assembly, total quantity of 20, has a billing price of $57.80, and consists of: Desc. Class: Duty rate Unit value Total value Comp-onent value Packing value Dutiable 9801.00.1098 Free .01310 .26 .26 8501.31.4000- 2.89 5% 2.89000 57.80 57.80 9802.00.8065 Free 11.54210 230.84 230.84 Attached is an unsigned document the heading, "BODEGA (ELP, TX), PRODUCTOS DELCO DE CHIHUAHUA, SA DE CV, " dated Friday, February 10, 1996. It also states, "DELCO CHASSIS D, trl # 602006, 003752." The pages contains a chart which includes the following information: Numero Parte; Clase Cant Descrip-cion Cada Total P. Br. P. Nt. 18022245; Trays 207 Anti-lock breaking Sys. Ass. 30 6,256 13,816 12,676 18024097; Trays 36 Anti-lock breaking Sys. Ass. 30 1,088 3,247 2,978 18024187; Trays 45 Anti-lock breaking Sys. Ass. 30 1,360 2,984 2,737 18024444; Trays 2 EHA-1 15 30 49 45 18024481 2 Anti-lock breaking Sys. Ass. 10 20 44 40 Finally, also attached is a "FOREIGN ASSEMBLERS DECLARATION," for invoice number PT- 001460, signed by a Customs broker on behalf of the Chihuahua plant that the AntiLock Breaking System Assembly was assembled in whole or in part from the fabricated components as follows: on 10/05/95- parts 18022245, 18024097, 18024187, 18024444 and on 02/10/96- part 18024481, totaling 8,754 pieces. The statement is signed and dated, February 10, 1996. Included with the protest is a letter dated January 9, 1996 to the Port of El Paso seeking a Marking requirement waiver for the imported goods. The letter is stamped, and signed by an Import Specialist, "MARKING WAIVER UNTIL 1/9/97 ONLY IF no geographic location such as U.S. AMERICAN, U.S.A., or any variation of such words or the name of any city or locality in the U.S. appears on imported article or its container." Finally, also attached to the protest are invoices, and documents for invoice numbers MD- 000838, and -000537, however the products listed are not part of the protest at hand. ISSUES: 1. Is the denial of a section 1520 (d) claim a valid protest issue? 2. Was the section 1520 (d) claim timely? 3. Is this a valid claim for NAFTA eligibility? LAW AND ANALYSIS: ISSUE #1: Under 19 U.S.C. 1514, (with certain exceptions not applicable in this matter) certain listed decisions (including the legality of all orders and findings entering into the same) of the Customs Service are final and conclusive on all persons unless a protest is filed in accordance with section 1514, or unless a civil action contesting the denial of a protest, in whole or in part, is commenced in the United States Court of International Trade in accordance with chapter 169 of Title 28, United States Code. The decisions (listed in section 1514(a); also listed in 19 C.F.R. 174.11 as "[m]atters subject to protest") are: (1) the appraised value of merchandise; (2) the classification and rate and amount of duties chargeable; (3) all charges or exactions of whatever character within the jurisdiction of the Secretary of the Treasury; (4) the exclusion of merchandise from entry or delivery or a demand for redelivery to customs custody under any provision of the customs laws, except a determination appealable under [19 U.S.C. 1337]; (5) the liquidation or reliquidation of an entry, or reconciliation as to the issues contained therein, or any modification thereof; (6) the refusal to pay a claim for drawback; or (7) the refusal to reliquidate an entry under [19 U.S.C. 1520(c)]. The procedures for filing a protest of one of the above decisions are provided in 19 U.S.C. 1514(c). Section 1514(c)(1) provides that only one protest may be filed for each entry of merchandise (with certain exceptions inapplicable in this matter). Section 1514(c)(3) provides that a protest of a decision, order, or finding described in section 1514(a) shall be filed with Customs within 90 days after but not before the notice of liquidation or reliquidation or the date of the decision as to which protest is made (if the requirement for filing within 90 days before the notice of liquidation or reliquidation is inapplicable). Under 19 U.S.C. 1515, "[u]pon the request of the protesting party ... a protest may be subject to further review by another appropriate customs officer, under the circumstances and in the form and manner that may be prescribed ... in regulations". The Customs Regulations pertaining to protests, issued under the above statutes, are found in 19 C.F.R. Part 174. Under 19 C.F.R. 174.24, further review (as provided for in 19 U.S.C. 1515) shall be accorded a party when the decision against which the protest was filed, among other things, is alleged to involve questions of law or fact which have not been ruled upon by the Commissioner of Customs or his designee or by the Customs courts. Under 19 C.F.R. 174.26(b), a protest with an application for further review shall be reviewed (as pertinent to the grounds under which further review was requested in this matter) by the Commissioner of Customs or his designee if the protest and application for further review raise an issue involving questions which have not been the subject of a Customs ruling or court decision. In this case, the Port Director's denial of the Protestant's claim for post-entry preferential NAFTA treatment under section 1520 (d) is a protestable issue. The Port Director made a determination, and decision regarding the classification of the merchandise that is the basis of the protest. That decision is protestable under 19 U.S.C. 1514 (a) (2). Additionally, the protest was filed within the required 90 days of the Customs determination that gave rise to the protest. ISSUE # 2: The issue involved here is whether the one-year anniversary of the date of importation is within one year of the importation. The count for the 1 year  1520(d) period begins the day after the date of importation. A calender year is 365 days, therefore, if the count begins the day after the date of importation, then the one-year anniversary of that posting would be within one-year. 86 C.J.S.  13(8) states in regards to time computation, "Under the general or common-law for reckoning a period of time within which an act is to be done, the first day is to be excluded from the computation and the last day is to be included..... the rule applies in the construction of constitutional provisions, in the construction of statutes fixing time, and in the construction of municipal charters." (p.860) Furthermore, numerous courts have decided the issue of timeliness in regards to statutory time limits. In United States v. Hurlburt & Sons, 11 Ct. Cust. App. 24 (1921) (T.D. 38638) the court stated, " Proceeding then upon the view that the time of entry,' as named in the statute signifies simply the day of the entry, we next conclude that the period of one year from the time of entry' as allowed thereby was intended by Congress to be a full year exclusive of the day of entry, that is of the terminus a quo.'" The court in Hurlburt also quoted Justice Field in Sheets v. Shelden (69 U.S. 177, 190) where he stated, "The general current of the modern authorities on the interpretation of contracts, and also of statutes, where time is to be computed from a particular day or a particular event, as when an act is to be performed within a specified period from or after a day named, is to exclude the day thus designated, and to include the last day of the specified period." In both Hawaiian Oke & Liquors v. United States, 28 Cust. Ct. 58 (1952) (C.D. 1388), and Railway Express Agency, Inc. v. United States, 30 Cust. Ct. 424 (1953), the court heard arguments on motions to dismiss based on the untimely filing of protests where the last day to timely file a protest fell on a weekend. In both cases the court cites to F.R.Civ.P 6(a) which states in regard to the computation of time, "In computing any period of time, prescribed or allowed by these rules, by order of the court, or by any applicable statute, the day of the act, event, or default after which the designated period of time begins to run is not to be included. The last day of the period so computed is to be included, unless it is a Sunday or a legal holiday, in which event the period runs until the end of the next day which is neither a Sunday nor a holiday." Here, the date of importation was 02/10/96, and the  1520 (d) claim was filed on 02/10/97. The count for the one-year period began on 02/11/96, the day after the date of importation, which would make 02/10/97, within one year of the liquidation. In conclusion, we find that the claim is timely filed according to the one-year requirement. ISSUE #3: As to whether the protest should be granted regarding post-importation claim for preferential NAFTA treatment, 19 U.S.C. 1520 (d), which concern