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HQ 561991




March 29, 2001

CLA-2 RR:CR:SM 561991 TJM

Category: CLASSIFICATION

TARIFF NO: 4303.10.0060

Port Director
Port of New York c/o Chief, Residual Liquidation and Protest Branch 6 World Trade Center
Room 761
New York NY 10048-0945

RE: Protest and AFR No. 1001-99-100835; NAFTA Origin; Certificate of Origin; 19 CFR part 181; Thomas B. McGeary CHB; furskin wearing apparel.

Dear Director:

The above referenced protest was forwarded to this office for further review. We have considered the evidence provided, and the points raised by your office and the protestant. Our decision follows.

FACTS:

According to the record before us, on September 30, 1997, the merchandise in question was entered from Canada. The protestant, Thomas B. McGeary CHB, claimed NAFTA preference for the merchandise as CA4303.10.0060 with no duty. On August 21, 1998, the U.S. Customs Service (“Customs”) issued a CF 28, Request for Information, for the Certificate of Origin. Paragraph 5 of CF 28’s General Information and Instructions states, in pertinent part, that “If a reply cannot be made within 30 days from the date of this request or if you wish to discuss any of the questions designated for your reply, please contact the Customs officer whose name appears on the front of this form.”

The protestant did not reply within the 30-day period with a Certificate of Origin. On September 21, 1998, Customs issued a CF 29, Notice of Action, denying the protestant’s claim for the NAFTA preferential tariff rate. Customs liquidated the merchandise in question on February 5, 1999, classified in subheading 4303.10.0060, Harmonized Tariff Schedule of the U.S. (HTSUS) with a rate of duty 4.7% ad valorem.

On February 18, 1999, the protestant, through counsel, Rode and Qualey, filed a timely protest and an application for further review. Your office states that attached to the protest (CF 19) on February 18, 1999, the protestant submitted for the first time, a blanket certificate of origin (CF 434) dated January 1, 1997, covering the period January 1, 1997, to December 31, 1997, for the furskin wearing apparel as products of Canada.

The application for further review was approved on December 5, 2000, and we received the file in this office on December 11, 2000.

On January 30, 2001, the protestant through counsel submitted a notarized affidavit executed by Thomas McGeary. The affidavit contains the assertions that Mr. McGeary had the Certificate of Origin in his possession at the time of the claim, that he filed the Certificate of Origin with Customs port on October 1, 1998, and that he was unable to reply within 30 days of Custom’s request for the Certificate of Origin because of the untimely death of his brother.

On January 31, 2001, counsel for the protestant submitted to this office a copy of a 10-page facsimile transmission that counsel transmitted to the Customs import specialist at port on March 23, 2000. The facsimile transmission contains five receipts stamped by Customs evidencing submission of the NAFTA Certificates of Origin by the protestant on October 1, 1998, covering entries which are the subject of four protests filed by counsel on behalf of the protestant. The facsimile contains a receipt for the submission of the Certificate of Origin at issue. The CF 29 serving as the receipt is date and time stamped, presumably by Customs port at JFK airport, with "JFKCO 2:13Oct 1’98.” All the pages of the facsimile transmission are sequentially numbered and the date and time stamps are consistent with other pages of the transmission.

On February 13, 2001, Mr. McGeary through counsel also provided a copy of a death certificate for his brother. The death certificate, which was executed by the County of Martin, Florida, notes the date of death as September 17, 1998 (M.E. Record No. 98-19-00517).

ISSUE:

Whether the protestant has provided sufficient and credible evidence to rebut the presumption that the protestant did not possess the Certificate of Origin at the time of the claim for the NAFTA preferential duty rate in a case where the protestant failed to provide a Certificate of Origin to Customs within 30 days of its request.

LAW AND ANALYSIS:

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. (Emphasis added)

Section 181.22 (b), Customs Regulations (19 CFR 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), Customs Regulations (19 CFR 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 3810-014 dated June 28, 1999, (superceding 099 3280-15, dated March 14, 1994), which provides guidelines for use of the NAFTA Certificate of Origin, states in pertinent part that “Import Specialists shall request the Certificate of Origin as they deem appropriate to substantiate claims for preferential NAFTA treatment, allowing a reasonable amount of time for the importer to produce the Certificate. . . . and a reasonable amount of time will be 30 days.”

In Headquarters Ruling Letter (“HRL”) 228506, Customs stated that “[t]he failure to supply promptly, with the 30-day period set in CF 28, a certificate of origin creates a rebuttable presumption that the importer did not have such a certificate of origin in its possession at the time of importation.” In the case at issue for HRL 228506, the protestant successfully rebutted the presumption by “submitting evidence that it did possess a valid certificate of origin at the time of importation.” The Certificate of Origin in HRL 228506 contained a fax line with the time and date, “Jan 05-99 Tue 10:47 am, K.T. Industries” showing that the protestant had possession of the Certificate of Origin on January 5, 1999. The entry at issue in that case was made on January 28, 1999.

Similarly, in HRL 561862, the protestant rebutted the presumption that he did not possess the Certificate of Origin at the time of the claim by submitting additional evidence. The evidence was a copy of the complete facsimile transmission from the Canadian exporter to the protestant. All pages of the facsimile transmission contained a time and date stamp indicating that the protestant received the Certificate of Origin from the Canadian exporter several months before the date of the claim. Additionally, the date and time stamp on the Certificate of Origin submitted to Customs port was identical to the stamp on the more complete copy of the facsimile transmission, indicating such as credible and sufficient evidence.

In contrast, in HRL 561901, Customs denied a protest upon further review because the evidence submitted to rebut the presumption that the importer did not have the Certificate of Origin in its possession at the time of the claim was not credible. The ruling states, in pertinent part, that:

In support of its contention that the Certificate was faxed to Customs on July 4, 1999 (three days before it was requested), protestant has submitted a “transmission verification report“ dated July 4, 1999. However, the report includes no description of the document that was faxed and, in fact, reflects that the fax was sent to a number that is not the fax number for your Port. In view of the above, as the protestant has failed to establish by any credible evidence that the Certificate of Origin was in its possession at the time of the NAFTA preferential claim was made, we find that [Customs port] properly denied the NAFTA claim.

In the instant case, as evidence that the protestant possessed the Certificate of Origin at the time of the claim, Mr. McGeary has submitted an affidavit stating that he had the Certificate of Origin in his possession at the time of the claim and that he was unable to provide the Certificate of Origin within the 30-day period because of the death of his brother. The affidavit states in pertinent part:

2. That as the President, I am familiar with all office procedures and I maintain responsibilities on a daily basis in all phases of the company. . . . 5. That on September 30, 1997, when I made the claim for NAFTA eligibility, I had the NAFTA certificate of origin in my possession. . . . 8. That the procedure in my office is for the blanket certificates of origin to be placed in files in order to be available when requested by Customs. 9. . . .I submitted the certificate of origin to Customs on October 1, 1998. 10. That I did not submit the certificate of origin in response to the CF 28 due to the untimely death of my brother, which necessitated my traveling to Florida. 11. That upon my return to the office, I personally retrieved from my files the certificate of origin covering this . . .entry and also certificates covering other entries which had been requested by Customs at the same time and submitted them to Customs. . . .

The death of Mr. McGeary’s brother is substantiated by a copy of a death certificate (M.E. Case #98-19-00517) executed by the County of Martin, Florida, for the protestant’s deceased brother. The death certificate indicates that the death occurred on September 17, 1998. Although the death certificate provides substantiation to the affidavit, it does not have any direct evidentiary value as to the ultimate question of whether the protestant possessed the Certificate of Origin at the time of the claim, September 30, 1997, in this case. The death certificate merely provides evidence that the delay in responding to Custom’s request was due to the death of a family member as asserted in the affidavit. This corroborating evidence only supports the veracity of this portion of the affidavit.

Protestant also asserted in the affidavit that the Certificate of Origin was provided to Customs port on October 1, 1998. The evidence provided is a CF 29 used as a receipt, which contains a date and time stamp. The receipt is part of a 10-page facsimile submission sent subsequently to Customs port in relation to this and other protests. The pages contain entry numbers and a date and time stamp presumably stamped by Customs port at JFK airport. The fourth page of the ten-page submission is the CF 29 relating to the entry at issue. It has a date and time stamp for October 1, 1998: “JFKCO 2:13OCT 1’98.” We accept this evidence to show that the Certificate of Origin was provided to Customs port on October 1, 1998, (39 days after it was requested) as asserted in the affidavit executed by Mr. McGeary. Again, this evidence does not provide direct dispositive evidence to rebut the above stated presumption. However, it further supports the veracity of the assertions made in the affidavit.

The evidentiary question returns to the affidavit as the only dispositive evidence to rebut the presumption that the protestant did not possess the Certificate of Origin at the time of the claim. The affidavit is not direct evidence (as was provided by protestants in HRL 228506 and in HRL 561862) that the protestant possessed the Certificate of Origin at the time of the claim. However, the credibility of the affidavit in the instant case has been supported by corroborating evidence substantiating certain claims in the affidavit. We are also unaware of any evidence which would undermine the credibility of the affidavit.

HOLDING:

When a party does not provide a Certificate of Origin within 30 days of its request by Customs, there exists a rebuttable presumption that the party did not have the Certificate in possession at the time of the claim. However, this presumption can be rebutted by providing Customs with sufficient and credible evidence that the party did possess the Certificate of Origin at the time of the claim.

Considering the totality of the evidence presented in this case, which included an affidavit and other corroborating evidence that substantiates certain assertions in the affidavit, we find that the protestant possessed the Certificate of Origin at the time of the claim. Therefore, the protest should be granted in full.

This decision should be mailed by your office to the protestant no later than sixty days from the date of this letter. On that date, the Office of Regulations & Rulings will take steps to 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 means of public distribution.

Sincerely,

John Durant
Director

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