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HQ 563133




May 12, 2005

CLA-2 RR:CR:SM 563133 NL

CATEGORY: NAFTA

Area Port Director
U.S. Customs and Border Protection
Otay Mesa Cargo Facility East
9777 Via De La Amistad
San Diego, CA 92154-7209

Att’n: Elizabeth Rodriquez

RE: AFR Protest No. 2507-03-100007; NAFTA Certificate of Origin

Dear Port Director:

The above referenced protest was forwarded to this office for further review contesting the denial of preferential tariff treatment under the North American Free Trade Agreement (NAFTA). We have considered the evidence provided, and the points raised by your office and the protestant. Our decision follows.

FACTS:

According to the record, on February 18 and 19, 2003 the protestant made four entries for certain automotive wheel rims and parts from Mexico. The merchandise was classified as MX 8708.70.6000, thereby claiming the NAFTA preferential duty rate. On March 7, 2003, U.S. Customs and Border Protection (CBP) by a CF-28 Request for Information requested the importer to provide NAFTA Certificates of Origin for the wheel rims. The CF-28 was mailed to the address indicated in Block 11 of the CF-7501 Entry Summary. A courtesy copy also was mailed to the importer’s customs broker as indicated on the CF-7501. This letter was returned by the Postal Service for an insufficient address on March 20, 2003. On March 26, 2003, CBP issued an Informed Compliance Notice to the customs broker, referencing the CF-28 and also advising of the inaccurate address. This notice was mailed to the address indicated in the National Maintenance List in the Automated Commercial System.

The record indicates that no reply to this notice was received by CBP. On April 7, 2003, CBP issued a CF-29 Notice of Action denying the importer’s claim for NAFTA treatment on the wheel rims for lack of a response to the CF-28 request for information. The CF-29 indicated that the importer had not provided a NAFTA Certificate of Origin, and further stated that if the claim was protested, the importer would have to overcome the presumption that the NAFTA Certificate of Origin was not in his possession at the time of entry.

On April 16, 2003 the importer’s customs broker responded to the CF-28 Request for Information by submitting a CF-434, signed and dated February 1, 2003. According to the CF 6445 Summons and Information Report, the importer was advised that action had already been taken and that the information would not be considered. The importer filed this protest timely on April 17, 2003. The protestant contends in its detailed reasons for protest on the CF-19 that it had the Certificate of Origin on file at the time of the NAFTA claim.

ISSUE:

Whether the automotive wheel rims and parts qualified for tariff treatment under the NAFTA.

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) 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 3810-014 dated June 28, 1999, (superceding Directive 099 3280-15) provides guidelines to Customs officers regarding the NAFTA Certificate of Origin. The directive states in pertinent part that, “Customs shall give importers a reasonable amount of time to submit a copy of the Certificate, generally 30 days. . . .If the importer fails to submit a copy of the Certificate after a request from Customs, the Import Specialist may deny the claim for NAFTA benefits. . . .” The Directive reflects 19 CFR 181.21(a) by stating that the certificate must be in the possession of the importer at the time of the NAFTA claim and shall be presented to the Area/District Director of Customs, or his or her designee, upon request. The directive states in paragraph 5.9 that “a CF 28 will be used to request the Certificate of Origin and a reasonable amount of time will be 30 days. Failure to provide the Certificate of Origin to Customs upon request will result in denial of the NAFTA claim.”

In Headquarters Ruling Letter 228506 (June 7, 2000), CBP stated that “[t]he failure to supply promptly, within 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 HQ 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.” The entry at issue in that case was on January 28, 1999.

In the instant case, where no information has been supplied in support of the importer’s contention that it was in possession of the CF-434 at the time of importation, CBP may properly deny NAFTA preferential tariff treatment and not allow protest of such decision.

HOLDING:

The failure of an importer to provide a certificate of origin within 30 days of its request by Customs creates a rebuttable presumption that the party did not have the certificate in possession at the time of the claim. In the instant case, the protestant has provided no evidence to rebut the above mentioned presumption. Therefore, the protest should be denied 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,

Myles B. Harmon
Director, Commercial

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