OT:RR:CTF:VS H243897 SEK
Port Director
U.S. Customs and Border Protection
240 North Freeport Drive
Nogales, AZ 85621
RE: Request for Internal Advice; Country of Origin Certificate; North American Free Trade Agreement
Dear Port Director:
This is in response to your request for internal advice regarding the validity of corrected Certificates of Origin submitted by an importer of record in support of a claim for duty-free treatment under the North American Free Trade Agreement (“NAFTA”).
FACTS:
Fatuvisa S.A. de C.V. (“Fatuvisa”) is a Mexican company that regularly manufactures and exports certain merchandise to the United States. Triple A. Brokers (“Triple A”), the importer of record, presented entry summary [xxx-xxxxxxxx], dated January 17, 2013 to Customs and Border Protection (“CBP”) for goods entered on January 7, 2013. The entry summary contained a NAFTA Certificate of Origin, which was signed and dated on January 5, 2013 and had blanket dates of January 14, 2006 to December 31, 2010. You state that the Certificate of Origin contained some quantity and merchandise information, but did not contain any invoice or reference numbers such as shipping order numbers. For example, your office notes that the Certificate of Origin lists “103 Ramas Sueltas,” “4 FRP & foam cover over metal pole,” and “6 Redes Plastico” in block 5, while the entry consisted of four invoices which contained 4 FRP & Foam Cactus, 103 artificial branches, and 4 plastic socks. Therefore, your office states it is unclear whether the merchandise listed on the Certificate of Origin matches the merchandise covered by the invoices.
On February 6, 2013, a Notice of Action was issued to Triple A. Brokerage, informing them that the Certificate was not acceptable due to the invalid blanket dates, and that if a valid certificate was not received within 5 business days, their claim for NAFTA preference on the merchandise would be denied without further notice. On February 15, 2013, Fatuvisa emailed updated Certificates of Origin with blanket dates of January 1, 2013 to December 31, 2013. Fatuvisa did not amend the original signature or signature date of January 5, 2013.
On May 20, 2013, a Notice of Action was issued declaring that the original Certificate of Origin submitted for entry summary number [xxx-xxxxxxxx], made on January 17, 2013, was not acceptable due to the blanket period being greater than one year and not covering the entry summary dates. The Notice of Action covered multiple un-liquidated entry summaries where a NAFTA claim was also made based on a faulty blanket Certificate of Origin.
On June 5, 2013, counsel for Triple A. Brokers and Fatuvisa submitted a letter, in which he argued that the Certificates were actually individual shipment Certificates and not blanket Certificates of Origin. You state that upon further review of various entry summary packages, it does appear Fatuvisa creates a new Certificate of Origin with blanket dates which are signed and dated a few days before the merchandise is imported. However, the Certificates do not include the invoice number as shown on the commercial invoice or another unique reference number, such as the shipping order number. You state it appears that Fatuvisa creates a Certificate to reflect the quantity shipped with a description that may or may not match up exactly with one or more invoices. Fatuvisa also enters blanket dates in Field 2 of the Certificates of Origin.
ISSUE:
Is the Certificate of Origin submitted for entry [xxx-xxxxxxxx]valid for the merchandise at issue in that entry?
LAW & ANALYSIS:
Under NAFTA, goods produced in Canada, Mexico, or the U.S. are eligible for preferential tariff treatment upon importation into one of the three countries if they satisfy certain rules. The rules are laid out in the various articles of the North American Free Trade Agreement, and the corresponding regulations are set out in Part 181 of the Customs Regulations (19 C.F.R. Part 181).
Pursuant to Subpart C of Part 181 and NAFTA Article 501, an importer who claims NAFTA preference must make a declaration of that claim, and the declaration must be based on a complete and properly executed original Certificate of Origin, or copy thereof which covers the goods being imported. See 19 C.F.R. 181.21(a). The Certificate of Origin shall be on CBP Form 434 (or a form issued by the customs authority for Canada or Mexico or other approved format), signed by the exporter or authorized agent having knowledge of the relevant facts. See 19 C.F.R. 181.22(b). An importer may use single Certificates for single importations. The single Certificate should be related to the shipment by indicating the invoice number or other unique reference. Blanket Certificates may be used for repetitive shipments of goods, and the goods must be imported on or between the specified “From” and “To” dates. This period may not exceed 12 months. See 19 C.F.R. 181.22(b)(5)(i)-(ii).
According to 19 CFR 181.22(b), an importer claiming preferential treatment shall provide, at the request of the port director, a copy of each Certificate of Origin pertaining to the goods in question. Thus, an importer is required to submit a Certificate of Origin which was in its possession at the time of importation to CBP upon request, in order to receive preferential tariff treatment. In HRL 228506, 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 CO in its possession at the time of importation.” However, this presumption can be rebutted if the importer provides credible and sufficient evidence that the party had a valid Certificate of Origin in its possession at the time of the claim. See, e.g., HRL 561991, dated March 29, 2001.
19 CFR 181.22(c) states in pertinent part that:
A Certificate of Origin shall be accepted by the port director as valid for the purpose set forth in 181.11(a) of this part, provided that the Certificate is completed, signed and dated in accordance with the requirements of paragraph (b) of this section. If the port director determines that a Certificate is illegible or defective or has not been completed in accordance with paragraph (b) of this section, the importer shall be given a period of not less than five working days to submit a corrected Certificate. Acceptance of a Certificate will result in the granting of preferential tariff treatment to the imported good unless, in connection with an origin verification initiated under subpart G of this part or based on a pattern of conduct within the meaning of 181.76(c) of this part, the port director determines that the imported good does not qualify as an originating good or should not be accorded such treatment for any other reason as specifically provided for elsewhere in this part.
Under the terms of 19 CFR 181.22(c), the port director must allow an importer at least five working days to cure a Certificate of Origin that has not been completed in accordance with 19 CFR 181.22(b). See H239669, dated April 23, 2013. As noted above, 19 CFR 181.22(b) requires that the Certificate of Origin must be on CBP Form 434 or other approved format. Accordingly, the port director must allow the importer at least five working days to correct CBP Form 434, including the data fields contained therein. Further, pursuant to 19 CFR 181.22(c), the port director must accept the corrected CBP Form 434 as valid unless he or she determines that the imported good does not qualify as originating for reasons provided for elsewhere in Part 181 of the Regulations.
The requirements of 19 CFR Part 181 are further clarified in Customs Directive 3810-014A, dated July 2008, which provides guidelines to CBP officers regarding the NAFTA Certificate of Origin. The directive states, in pertinent part, that:
5.1.1 Import Specialists shall request copies of Certificates, and translations thereof, as necessary to substantiate claims for preferential NAFTA treatment. CBP shall give importers a reasonable amount of time to submit a Certificate; generally 30 days.
5.1.2 If the Import Specialist determines that a Certificate is not signed, not dated, is illegible, or has not been completed in accordance with 19 CFR 181.22(b), the importer shall be given a period of not less than 5 working days to perfect the claim. If the importer fails to submit a valid Certificate after this request from CBP, the Import Specialist may deny the claim for NAFTA benefits.
5.1.3 In situations where the Certificate was not signed, not dated, or was dated after the date of the claim, the importer must provide proof that a signed and correctly dated Certificate was in the importer’s possession on the date the claim was made. Failure to provide Import Specialists with such proof will result in the denial of the claim.
In this case, the blanket dates provided on the original Certificate of Origin were for a period greater than one year, and were more than two years old. Therefore, these incorrect dates made the Certificate “defective or … not … completed in accordance with paragraph (b) of 19 CFR 181.22.” 19 CFR 181.22(c). The Import Specialist notified Triple A that they had 5 business days to correct the blanket dates on the Certificate of Origin, and after 7 working days, on February 15, 2013, Fatuvisa provided a Certificate with corrected blanket dates in Box 2 of January 1, 2013 to December 31, 2013. Although the importer did not correct the Certificate within five working days, the relevant regulation does not preclude the port from accepting the Certificate, and only states that the importer must be given “not less than five working days” (emphasis added) to submit a corrected Certificate. Therefore, the port could still accept the corrected Certificate.
Counsel for the protestant argues that the blanket dates on the original Certificate of Origin are incorrect, but that the Certificate, like all Fatuvisa Certificates of Origin, is actually a single shipment Certificate of Origin. Counsel argues that because all of the Certificates specifically identify the goods in the subject shipment and are signed and dated a few days before the merchandise is imported, they are actually intended to be single shipment Certificates, and just happen to contain “obviously incorrect and meaningless dates in Box 2.” We note that although the Certificates do not contain the invoice number as shown on the commercial invoice or another unique reference number connecting the Certificate to the shipment, there is information on the Certificates that corresponds to the merchandise on the invoices for this shipment, and therefore links the Certificate to the importation at issue. The Certificate is also signed and dated on January 5, 2013, just a few days before the importation. Therefore, we agree that even though the importer filled out the blanket dates portion of the CBP Form 434, the submitted Certificate was actually intended to be a single Certificate. Although the Certificate bore mistaken blanket dates, we find that the Certificate is valid for the merchandise at issue in entry [xxx-xxxxxxxx], dated January 17, 2013, as it is a CBP Form 434 signed by the exporter a few days before the importation, and completed in English and Spanish. We note that the acceptance of this Certificate of Origin as valid for the merchandise at issue will result in the granting of preferential tariff treatment unless an origin verification conducted pursuant to section 181.72 of the CBP regulations determines that the imported good does not qualify as an originating good. See 19 CFR § 181. 22. Accordingly, as the entries are not yet liquidated, your office may still initiate a verification to determine their eligibility.
HOLDING:
Based on the information provided, the Certificate of Origin submitted for entry [xxx-xxxxxxxx], dated January 17, 2013, is valid for the merchandise at issue in that entry.
You are to mail this decision to counsel for the internal advice requester no later than sixty days from the date of this decision. At that time, Regulations and Rulings of the Office of International Trade will make the decision available to CBP personnel, and to the public, on the CBP Home Page on the World Wide Web at http://www.cbp.gov, by means of the Freedom of Information Act, and other methods of publication.
Sincerely,
Monika R. Brenner, Chief
Valuation and Special Programs Branch