ENT-6-01/CON-2-07-CO:R:C:E 225021 PH
U.S. Customs Service
9901 Pacific Highway
Blaine, Washington 98230
(ATTN: Protest Reviewer)
RE: Application for Further Review of Protest No. 3004-93-100125;
Exporter's Certificate of Origin; CF 353; CD 099 3280-012; 19
CFR 10.307; 19 U.S.C. 1514
Dear Sir:
The above-referenced protest was forwarded to this office for
further review. We have considered the points raised by your
office and the protestant. Our decision follows.
FACTS:
According to the file, on March 29, 1993, the protestant, a
Customs broker, entered the merchandise under consideration, a
Caterpillar Motor Grader. The merchandise was entered as dutiable,
under subheading 8429.20.00.00, Harmonized Tariff Schedule of the
United States Annotated (HTSUSA), with duty in the amount of $750.
There is an invoice prepared by the protestant in the file
according to which the merchandise was consigned from and to
Montana Tractor Inc., of Kalispell, Montana. According to a hand-
written notation on the invoice, the exporter was Ritchie Bros. of
Surrey, British Columbia. There is an "Auction Invoice", dated
March 10, 1993, in the file, according to which the merchandise was
sold at auction by Ritchie Bros. to Montana Tractor Inc.
In the file there is a May 26, 1993, communication from the
protestant to Customs stating that the protested entry was filed
without free trade and "as per the attached free trade certificate,
free trade does apply." The communication also stated "in light
of this matter we respectfully request a refund in the amount of
$795.60 [the amount over the duty of $750 represents the applicable
merchandise processing fee] upon liquidation for duty overpaid."
A Customs Form (CF) 353, Exporter's Certificate of Origin was
enclosed. The CF 353 was completed to show Montana Tractor in
field 1 (Goods consigned from (exporter's identification)); January
1, 1993 as the effective date and December 31, 1993 as the
expiration date in field 2 (if blanket certification); and
"various" in field 3 (consignee). The CF 353 was not dated and was
signed by a person identified as the owner of Montana Tractor.
On July 23, 1993, the entry was liquidated as entered (i.e.,
dutiable with duty in the amount of $750). On August 30, 1993, the
protestant filed the protest under consideration. The basis of the
protest was stated to be "... we have a certificate of origin
showing this shipment to qualify for free trade." With the protest
the protestant provided an undated letter (according to a stamped
indication on the letter, it was received by the protestant on June
25, 1993) signed by the official of Montana Tractor who was
identified on the CF 353 as the owner. In this letter it was
stated that Montana Tractor purchased the grader from the British
Columbia auction company, that the grader was built in Canada, and
that the company had never had to pay duty on Canadian goods since
implementation of the United States-Canada Free-Trade Agreement
(CFTA). Also submitted with the protest was a new CF 353,
completed to show Ritchie Brothers in field 1 and Montana Tractor
in field 3. Field 2 was left blank. The CF 353 was dated June 23,
1993, and was signed by the person identified as the owner of
Montana Tractor. The protestant cited "Administrative Message 92-
0364" as supporting its position.
ISSUE:
May the protest in this case be granted?
LAW AND ANALYSIS:
Initially, we note that the protest was timely filed (i.e.,
within 90 days of the notice of liquidation; see 19 U.S.C.
1514(c)(2)(A)) and that the decision protested is protestable (see
19 U.S.C. 1514(a)(5)).
The CFTA entered into force on January 1, 1989 (see Article
2105 of the CFTA and Presidential Proclamation 5923 of December
14, 1988 (53 Federal Register 50638, 50640, December 16, 1988)).
The provisions of the CFTA were adopted by the United States with
the enactment of the United States-Canada Free-Trade Agreement
Implementation Act of 1988 (CFTA Act; 100 Stat. 418, Public law
100-449).
According to Article 406 of the CFTA, "[t]he parties'
respective Customs Administrations shall cooperate as specified in
Annex 406 [of the CFTA]." Annex 406, A. 1., provides that each
Party may require that an importer who represents that goods
imported from the territory of the other Party meet the rules of
origin make a written declaration to that effect and base such
declaration on the exporter's written certification to the same
effect; that such an importer provide the Customs Administration
of the Party with proof of the exporter's written certification of
the origin of the goods; and that these requirements may be made
mandatory.
Section 205(a) of the CFTA Act provides that any person who
certifies in writing that goods exported to Canada meet the rules
of origin under the CFTA Act shall provide, upon request by any
customs official, a copy of that certification. According to the
legislative history for the CFTA Act, this provision implements
the provisions of Annex 406 allowing each party to require an
importer of goods from the other party to submit a declaration of
origin based upon a written certification from the exporter (Senate
Report 100-509, 100th Cong., 2d Sess. (1988), printed at 1988
U.S.C.C.A.N. 2395, 2412).
Customs promulgated interim regulations to implement the
provisions of the CFTA in Treasury Decision (T.D.) 89-3. Section
10.307, Customs Regulations (19 CFR 10.307) provided for the
documentation required to claim a CFTA preference. According to
section 10.307(c), a claim for preference was required to be based
on the Exporter's Certificate of Origin, "properly completed and
signed by the person who exports or knowingly causes the goods to
be exported from Canada." The Certificate was required "[to] be
available at the time the preference is claimed ...."
Final regulations were promulgated in T.D. 92-8, after Customs
received and analyzed comments on the interim regulations. In
response to comments on 19 CFR 10.307(c), Customs stated that the
requirement in that provision that the Exporter's Certificate of
Origin "'must be available' (i.e., must be in existence) at the
time the preference is claimed is merely a consequence of the
requirement in the first sentence that a claim 'shall be based' on
the [Certificate] [which in turn] reflects the terms of Annex 406
of the CFTA ...." Customs agreed with the commenters that section
10.307 could be "overly restrictive" in appearing to provide that
a claim for CFTA treatment can be made only at the time of the
filing of the entry summary. According to T.D. 92-8, this was not
intended and "an importer may file a claim for a CFTA preference
after filing of the entry summary or its equivalent (1) at any time
prior to liquidation ..., (2) within 90 days after liquidation, by
filing a protest under 19 U.S.C. 1514, or (3) at any time within
one year of the date of liquidation, by submission of a letter to
Customs under 19 U.S.C. 1520(c)(1) ...." However, the T.D. added
"that a valid Exporter's Certificate of Origin covering the goods
in question also must be in existence at the time that such a post-
entry/entry summary claim is made."
After promulgation of the final regulations in T.D. 92-8,
Customs issued a Customs Directive providing guidelines for the
completion of the CF 353 (Customs Directive 099 3280-012, dated
May 19, 1992). According to this Customs Directive, field 1 of
the CF 353 "refers to the ... person or business that is
responsible for the exportation [and] applies to the certifying
signature in field 11." The Customs Directive stated that "[t]he
date in the signature field must precede the claim date." In this
regard, the Customs Directive reiterated "[t]he ECO [i.e., the CF
353] must be in existence at the time the preference is claimed and
shall be presented to U.S. Customs upon request." In regard to
blanket certifications, the Customs Directive stated "[although]
[t]he date of the signature on a blanket ECO may be after the
effective date range given in this field, ... the date of the ECO
signature must precede the date of the claim."
Administrative Message 92-0364, dated August 25, 1992,
provides guidance on the processing of CFTA claims for relief under
19 U.S.C. 1514 and 1520(c)(1). According to the Administrative
Message, "[t]here can be no valid protest or reliquidation request
without a valid CF 353 ... included with the protest or
reliquidation request." The Administrative Message proceeds to
state that the validity of the CF 353 must be reviewed for
sufficiency and relevancy. In this regard, the Administrative
Message states that "[t]he date in the signature field must precede
the claim date."
In this case, the claim for preference under the CFTA was
made on May 26, 1993. The CF 353 filed with the claim for
preference (with a blanket certification period covering the time
in which the claim was made) was invalid because the date it was
signed was not given (see above requirements, since the CF 353 was
not dated, it could not be determined whether the Certification
preceded the date of the claim, as required for the Certificate to
be valid; see also, statement on the reverse of the CF 353 that
"[u]nless the place, date, signature and title of the exporter
appear on the space provided, this document will be considered
invalid"). The CF 353 filed with the protest (not a blanket
certification) was invalid because the date it was signed (June 23,
1993) was after the date that the claim for preference was made
(May 26, 1993) (i.e., "a valid Exporter's Certificate of Origin
covering the goods in question [was not] in existence at the time
that [the] post-entry/entry summary claim [was] made"; see above
quotation from T.D. 92-8; see also, Customs Directive 099 3280-
012 and Administrative Message 92-0364, quoted above).
Furthermore, according to field 1 of this CF 353, the exporter was
Ritchie Brothers, but the CF 353 was signed by the owner of Montana
Tractor. The CF 353 is required to be signed by the exporter (see
19 CFR 10.307(c); see also T.D. 92-8, page 43 of the bound edition
of the 1992 Customs Bulletin, "The CFTA specifically requires that
the certification be made by the 'exporter'"). The protest is
DENIED.
HOLDING:
The protest is DENIED. In accordance with Section 3A(11)(b)
of Customs Directive 099 3550-065, dated August 4, 1993, Subject:
Revised Protest Directive, this decision should be mailed by your
office, with the Customs Form 19, to the protestant no later than
60 days from the date of this letter. Any reliquidation of the
entry in accordance with the decision must be accomplished prior
to mailing of the decision. Sixty days from the date of the
decision the Office of Regulations and Rulings will take steps to
make the decision available to Customs personnel via the Customs
Rulings Module in ACS and the public via the Diskette Subscription
Service, Lexis, Freedom of Information Act, and other public access
channels.
Sincerely,
John Durant, Director