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HQ 561976

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March 1, 2001

CLA-2 RR:CR:SM 561976 KSG

CATEGORY: CLASSIFICATION

Port Director
U.S. Customs Service
International Bridge
Hidalgo, Texas 78557

RE: Application for Further Review of Protest No. 2304-99-100357; submission of NAFTA Certificate of Origin;

Dear Director:

This is in reference to a Protest and Application for Further Review timely filed on behalf of Diazteca Company, contesting the denial of duty-free treatment under the North American Free Trade Agreement (“NAFTA”), to imported mangos.

FACTS:

Diazteca Company Inc. imported fresh mangos from Mexico on May 21, 1999. The goods were entered with the NAFTA “MX” prefix. On June 16, 1999, Customs sent a Customs Form 28 to the importer with a copy to the broker, asking for the NAFTA Certificate of Origin to be provided within 30 days from the date of the notice. Your office states that no certificate was presented.

On August 18, 1999, Customs sent out a Notice of Action giving the protestant notice of a rate advance. The broker submitted a Certificate of Origin on August 30, 1999. The entry was liquidated on October 22, 1999, as fully dutiable because Customs determined that the NAFTA Certificate of Origin was not timely filed.

The protestant states that the certificate was presented timely via fax, by the broker. In support of this contention, the broker submitted a fax “transmission verification report” dated May 20, 1999, as evidence that it timely submitted the Certificate of Origin.

ISSUE:

Whether Customs properly denied NAFTA duty treatment for the entry in this case.

LAW AND ANALYSIS:

General Note 12(a)(ii) of the Harmonized Tariff Schedule of the United States (“HTSUS”) provides that:

Goods that originate in the territory of a NAFTA party under the terms of subdivision (b) of this note and that qualify to be marked as goods of Mexico under the terms of the marking rules set forth in regulations issued by the Secretary of the Treasury (whether or not the goods are marked), when such goods are imported into the customs territory of the United States and are entered under a subheading for which a rate of duty appears in the “Special” subcolumn followed by the symbol “MX” in parentheses, are eligible for such duty rate, in accordance with section 201 of the North American Free Trade Agreement Implementation Act.

Part 181, Customs Regulations (19 CFR Part 181) implements the duty preference provisions of NAFTA. Section 181.21(a), Customs Regulations (19 CFR 181.21(a)) states, in pertinent part, that:

[i]n connection with a claim for preferential tariff treatment for a good under NAFTA, the U.S. importer shall make a written declaration that the good qualifies for such treatment.... [t]he declaration shall be based on a complete and properly executed original Certificate of Origin, or copy thereof, which is in the possession of the importer and which covers the good being imported.

Section 181.22(b) states that “an importer who claims preferential tariff treatment shall provide, at the request of the Port Director, a copy of each Certificate of Origin pertaining to the good.” Section 181.23(a) provides that the port director may deny preferential tariff treatment to the imported good if the importer fails to submit a Certificate of Origin.

Customs Directive 099 3280-15, dated March 14, 1994, which provides guidelines for use of the NAFTA Certificate of Origin, states, in pertinent part, that “Customs shall give importers a reasonable amount of time to submit a copy of the Certificate, generally 30 days.” The Directive further states that the certificate must be in the possession of the importer at the time preferential treatment is claimed and shall be presented to the Area/District Director of Customs, or his or her designee, upon request.

In this case, the entry was filed on May 21, 1999, with a claim for NAFTA preferential duty treatment. Your office requested the supporting NAFTA Certificate of Origin on June 16, 1999. The NAFTA Certificate of Origin was submitted on August 30, 1999, more than two months later. In support of its contention that the Certificate was faxed to Customs on May 20, 1999 (one day prior to the filing of the entry), the protestant has submitted a “transmission verification report” dated May 20, 1999. However, the report includes no description of the document that was faxed and we do not find it credible that the protestant submitted the Certificate by fax one day prior to the filing of the entry and 26 days prior to the issuance of the CF 28.

In view of the above, as the protestant has failed to establish by any credible evidence that the Certificate was in its possession at the time the NAFTA preferential claim was made, we find that your office properly denied the NAFTA claim.

HOLDING:

The importer has not established that it had the NAFTA Certificate of Origin in its possession when NAFTA duty treatment was claimed for the entry and therefore, Customs properly denied the NAFTA preferential claim. The protest should be denied in full.

In accordance with Section a(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 should be accomplished prior to mailing of this decision. Sixty days from the date of this 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.ustreas. gov, by means of the Freedom of Information Act, and other methods of public distribution.

Sincerely,

John Durant, Director
Commercial Rulings Division


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