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HQ 563240




August 9, 2005

CLA-2 RR:CR:SM 563240 NL

CATEGORY: CLASSIFICATION

Service Port Director
U.S. Customs and Border Protection
El Paso Service Port
3600 E. Paisano, Bldg B.
El Paso, TX 79905

Att’n Import Specialist Robert Diaz

RE: AFR Protest No. 2402-041-00014; NAFTA Certificate of Origin

Dear Sir:

The above-referenced protest was forwarded to this office for further review of your decision to deny 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, the importer made entry for certain tungsten halogen lamps on April 20, 2004 as referenced in Commercial Invoice No. PT2002382 dated April 20, 2004. The lamps were classified in subheadings MX 8539.21.2080 and MX 8539.21.4040, HTSUS, thereby declaring the lamps eligible for preferential tariff treatment as goods originating in Mexico under the NAFTA. On May 5, 2004, CBP issued a request to the importer via CF 28 for the Certificate of Origin covering the goods. Apparently receiving no response, on July 12, 2004, CBP issued a CF 29 Notice of Proposed Action indicating that if the certificate was not supplied, the entry would be liquidated without NAFTA preferential tariff treatment. The protest record shows no reply to this proposed action. The entry was liquidated with rate advance on August 27, 2004. The importer filed this timely protest on November 12, 2004.

Included in the protest file is a blanket CF 434 covering the lamps pursuant to an attached list for the period January 1, 2004 through December 31, 2004. The Certificate is dated December 1, 2003, with a hand-written date next to the signature of December 17, 2003. The title of the signer is given on the CF 434 as “plant controller” of the exporter, a corporate affiliate of the importer. At the bottom of the Certificate and all its attachments are printed indications of transmission by telecopier on December 19, 2003, from Sylvania Componentes Electronicos in Ciudad Juarez, the producer and exporter. Sylvania’s customs broker, Danzas, has provided a statement for the record that this telecopier transmission was in its possession as of that date.

Also included in the protest record are CF 434 Certificates of Origin also executed by Sylvania Componentes Electronicos and dated December 1, 2003, for calendar year 2004; dated March 1, 2004 and covering the period from that date to the end of 2004; dated April 6, 2004 covering from that date to the end of 2004; and dated April 30, 2004, covering from that date to the end of 2004. Each CF 434 covers halogen lamps and parts as described in parts lists attached to the CF 434.

Review by this office has determined that for the goods imported on April 20, 2004, the subject of this protest, the CF 434s cover all of the goods as designated by parts numbers except for part Nos. 59021 and 14710. These goods are not designated in any of the CF 434s in this protest record.

At protest the importer asserts that the requested certificate of origin was supplied timely, on May 13, 2004. In support, the importer submitted a stamped receipt copy on the letterhead of its customs broker indicating that documentation was submitted to CBP El Paso on that date in reply to the CF-28 request of May 5 in connection with the April 20 entry of tungsten halogen lamps. The importer believes that there was inadvertence or clerical error on the part of CBP in that this submission was not matched up to the entry or forwarded to the correct CBP Import Specialist.

CBP bases its position on the failure of the importer to respond to the several requests for the certificate, noting that the importer had approximately 99 days to respond to the May 5 request. CBP considered that even if the apparent May 13 response had been lost in transmission, a reasonable person should have attended to the matter when the Notice of Proposed Action was sent. CBP also believes that the receipt copy is not sufficient evidence that a valid certificate was delivered to CBP on that date.

ISSUE:

Whether the importer’s claim for NAFTA preferential tariff treatment should be allowed.

LAW & 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.

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.

The Customs Directive in effect at the time of these importations, CD No. 3810-014 June 28, 1999), provides guidelines to Customs officers regarding the NAFTA Certificate of Origin. (A new Directive issued on July 26, 2005, CD No. 3810-014A, is materially unchanged with regard to CBP procedures addressing inadequate NAFTA Certificates 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.”

At protest, the importer may exercise his right to contest the chargeable rate of duty. See, 19 U.S.C. 1514(a)(2); 19 CFR 174.11(b). Upon further review in a protest, the protestant may, pursuant to 19 CFR 174.28, submit additional arguments and alternative claims until final disposition of the protest. It is the practice of this office to allow protestants to submit additional evidence in a protest. See, e.g., Headquarters Ruling Letter (HQ) 112667 (May 25, 1993); HQ 224397 (March 8, 1994); and HQ 224118 (July 26, 1993). In HQ 562045 (December 4, 2001), Customs held that although a NAFTA origin verification was directed at the producer or exporter of the goods, the importer may provide the verification information via protest.

In HQ (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.”

Under the circumstances, El Paso CBP’s treatment of the entry was in accordance with regulation and directive. Having requested the Certificate, receiving none, and receiving no reply to his follow-up, the CBP official correctly rate advanced the entry and denied NAFTA preferential tariff treatment.

The importer contends that the goods were eligible for NAFTA tariff treatment, that he possessed the CF 434 at importation, and that he responded timely to CBP’s CF 28 Request for Information by transmitting relevant CF 434 Certificates of Origin. The importer has submitted CF 434 Certificates which, as determined in this office’s review, cover some, but not all of the goods listed in the commercial invoice submitted at importation. The CF 434 Certificates in the protest record correctly describe the goods (except as noted) are signed and dated before the date of importation, and otherwise conform to the requirements of 19 CFR 181.22(b).

Also, as evidence that the CF 434 Certificates were submitted to CBP, the protestant submitted a receipt copy of the customs broker’s submission form, indicating that on May 12, 2004 the broker prepared a submission in reply to the Import Specialist’s May 5, 2004 CF 28 Request. The receipt copy bears a stamp dated May 13, 2004 which reads, “Customs and Border Protection/2004 May 13 A 19:55/El Paso, Texas.” We find that this receipt copy offers some proof that the importer delivered the requested CF 434 to CBP. We do not find in the protest record a basis for CBP to deny that it received this submission.

Separately, we find that the importer has offered sufficient evidence, as shown by the markings indicating photocopier transmission from the producer/exporter to the importer’s customs broker on December 19, 2003, that the importer was in possession of the CF 434 at the time of importation, April 20, 2004, when its claim for NAFTA preferential tariff treatment was made. Given that the apparent failure of the importer to present the document was the only basis for denial of the claimed NAFTA treatment, and given that the protestant has, in accordance with procedures, submitted the applicable CF 434 with evidence of timely execution and possession by the importer, this protest should be allowed. However, NAFTA preferential tariff treatment should be denied for Part Nos. 14710 and 59026 as set out in the importer’s commercial invoice, because these goods where not covered by any of the CF 434s ultimately supplied by the importer. By message dated June 6, 2005, the importer has acknowledged the incompleteness of the certification in this regard.

HOLDING:

At protest the importer has submitted documents to substantiate the partial validity of the NAFTA claim. The protest should be allowed, except with respect to Part Nos. 59021 and 14710, both listed on the commercial invoice for the entry under protest.

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,

Monika R. Brenner, Chief
Valuation and Special

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