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HQ 960754




May 7, 1998

CLA-2 RR:CR:GC 960754 PH

CATEGORY: CLASSIFICATION

TARIFF NO.: 8701.20.00

Service Port Director
U.S. Customs Service
312 Fore Street
Portland, Maine 04112

RE: Protest 0101-97-100059; Freightliner truck; Canadian article; NAFTA certificate; verification; Automotive Products Trade Act (APTA); General Notes 5 and 12, HTSUS; 19 CFR 10.84; HQ 222654

Dear Port Director:

This is in response to Protest 0101-97-100059, which pertains to the denial of free entry under the Automotive Products Trade Act (APTA) of 1965, as amended, for a Freightliner truck.

FACTS:

The merchandise is invoiced as a used Freightliner truck tractor, model FLD12064ST, serial number 2FUYDXB5KV325399. The merchandise was entered on September 12, 1996, with classification under subheading B8701.20.0080, Harmonized Tariff Schedule of the United States (HTSUS) (the "B" in the entered subheading represents a claim for duty-free treatment under APTA).

Customs issued two Requests for Information (Customs Form 28) for the entry (the date of the second request is October 17, 1996). The information requested was: (1) a copy of the contract (or purchase order and seller's confirmation thereof) covering the transaction and any revisions thereto; and (2) other information described as follows:

The rules of origin under APTA are the same rules of origin for [the North American Free Trade Agreement (NAFTA)]. Therefore, please provide details to support the claim that this vehicle qualifies under APTA. Such proof may consist of materials used in the production and relevant regional value content information.

In the file there is a NAFTA Certificate of Origin for the merchandise, listing the protestant as the exporter and importer, and indicated to have been prepared (although not signed) by the protestant. The date of preparation on the Certificate is February 25, 1997.

The entry was liquidated on February 28, 1997, with duty in the amount of $489.00 (on the basis that duty-free treatment under APTA was denied). On May 29, 1997, the importer filed the protest. The protestant argued that the "... since 1965 complete motor vehicles of Canada have been granted APTA status regardless of the status of the importer." The protestant enclosed with the protest a copy of the above-described NAFTA Certificate of Origin.

Also in the file is a letter dated September 4, 1996, from Freightliner Corporation of Portland, Oregon, stating that the merchandise (identified by model and serial number) was manufactured in June 1988 in Burnaby, British Columbia, and that it complied with United States Federal Motor Vehicle Safety Standards (with two noted exceptions) and all United States Environmental Protection Agency requirements.

The subheading under consideration is as follows:

8701.20.0080: Tractors (other than tractors of heading 8709): ... Road tractors for semi-trailers ... Used.

The 1996 general column one rate of duty for goods classifiable under this provision is 4% ad valorem; goods classifiable under this provision which are eligible for tariff treatment under the APTA receive duty-free treatment.

ISSUE:

Whether the truck qualifies for duty-free treatment under APTA.

LAW AND ANALYSIS:

Initially, we note that the protest was timely filed (i.e., within 90 days after but not before the notice of liquidation; see 19 U.S.C. 1514(c)(3)(A)) and the matter protested is protestable (see 19 U.S.C. 1514(a)(2) and (5)).

General Note 5(a), HTSUS, provides that motor vehicles and original motor-vehicle equipment which are Canadian articles and which fall in provisions for which the rate of duty "Free (B)" appears in the "Special" subcolumn may be entered free of duty under the APTA. In accordance with Note 5(a)(i) the term "Canadian article" means an article which originates in Canada, as defined in General Note 12.

Paragraph (b) of General Note 12, HTSUS, establishes the criteria under which goods imported into the customs territory of the United States qualify as originating goods for NAFTA purposes (i.e., to qualify as originating goods, goods must be wholly obtained or produced in the territory of Canada, Mexico and/or the United States, have been transformed in the territory of Canada, Mexico and/or the United States so that each of the non-originating materials used in the production of the goods undergoes a change in tariff classification described in General Note 12(r), (s) and (t), or otherwise meet the requirements of General Note 12(b)).

The Customs Regulations issued under APTA are found in 19 CFR 10.84. Under section 10.84(a):

... To claim exemption from duty under the [APTA], an importer must establish, to the satisfaction of the appropriate Customs officer, that the article in question qualifies as a "Canadian article" [see above]. The Customs officer may accept as satisfactory evidence a certificate executed by the exporter as set forth in paragraph (b) of this section, subject to any verification he may deem necessary. Alternatively, the Customs officer may determine that under the circumstances of the importation a certificate is unnecessary. [Emphasis added.]

In HQ 222654 dated March 22, 1991, we applied the above provision to a protest of the denial of APTA treatment, specifically raising the question of "... how much authority [the provision] gives [the appropriate Customs officer] in making decisions on claims for duty-free treatment under APTA." We concluded that the Customs officer "... legitimately and properly exercised his right to request copies of purchase orders from the protestant pursuant to 19 CFR ?10.84."

Similarly, in this case, Customs "... legitimately and properly exercised [its] right ..." to verify the APTA claim as deemed necessary under section 10.84(a) (above). That is, in the two Requests for Information, Customs sought a copy of the contract (or purchase order and seller's confirmation thereof) covering the transaction and any revisions thereto (as in HQ 222654), as well as details to support the claim that the vehicle qualifies under APTA.

The protestant did not provide the required information. Further, the required information has still not been provided. In this regard, we note that none of the documents submitted with the protest address the criteria in General Note 12(b) for originating goods, even though the Requests for Information described information which could meet these criteria. Therefore, as in HQ 222654, the protest is denied.

HOLDING:

The truck does not qualify for duty-free treatment under APTA.

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, this decision should be mailed, with the Customs Form 19, by your office to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with the decision must be accomplished prior to mailing of the decision. Sixty days from the date of the decision the Office of Regulations and Rulings will take steps to make the decision available to Customs personnel via the Customs Rulings Module in ACS and the public via the Diskette Subscription Service, Freedom of Information Act, and other public access channels.

Sincerely,

John Durant, Director,

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