PRO-2-02 RR:CR:DR 227853 EAB
Port Director
U.S. Customs Service
2350 Sam Houston Parkway East
Houston, Texas 77032
Re: Protest No. 5301-96-100494, acetaldehyde, ethanal; NAFTA Certificate of Origin; 5301-96-200154
Dear Port Director:
This is our decision on protest 5301-96-100494, timely filed by Intercargo Insurance Company, surety to the importer, on November 7, 1996, against your decision in the liquidation of merchandise entered August 27, 1995 and September 15, 1995.
Your attention is directed to protest number 5301-96-200154, which concerns the identical issue. On August 15, 1996, you received and assigned number 5301-96-100376 to a protest filed on behalf of PMI Trading Ltd. It appears that upon your further reading of the memorandum of law with points and authorities incorporated as Section II of the Customs Form 19 (CF-19), the protest was considered to be one based upon a clerical error and filed seeking relief pursuant to 19 U.S.C. 1520(c)(1). The protest number assigned to the issue was manually changed from 5301-96-100376 to 5301-96-200154, reflecting a so-called “520 petition”. Upon yet another reading of that submission, the CF-19 was marginally annotated “Actually a 514 protest”. The number assigned was not changed, however, from the 5301-96-200154, back to 5301-96-100376, or any other number reflecting a so-called “514 protest”.
This headquarters decision (HQ 227853) on protest 5301-96-100494 is to be treated as our decision on the lead protest, Intercargo Insurance Company, protestant, and controlling in the trailing protest, PMI Trading Ltd., protestant. That protestant (PMI) is represented by attorney Preston Brown, to whom a second true copy of this decision is to be mailed by you in accordance with Customs Directive 099 3550-065 (August 31, 1994), “Revised Protest Directive”, at the following address:
Preston Brown, Esquire
Curtis, Mallet-Prevost, Colt & Mosle
Attorneys and Counsellors at Law
1801 K Street, N.W.
Washington, D.C. 20006-1302.
FACTS:
Two consumption entries (451-NNNN024-6 dated August 26, 1995 and 451-NNNN082-4 dated September 9, 1995) of ethanal, an organic chemical compound also known as “acetaldehyde”, were liquidated on May 24, 1996, as entered in subheading 2912.12.0000, Harmonized Tariff Schedule of the United States (HTSUS), the eo nomine provision for same; however, liquidation proceeded at the column 1 General rate of duty of 7.5 % ad valorem rather than at the preferred rate of “Free” in accordance with section 201 of the North American Free Trade Agreement Implementation Act (NAFTA).
On May 28, 1995, PMI prepared a NAFTA blanket Certificate of Origin to cover entries of the subject merchandise for the period January 1, 1995 through December 31, 1995. PMI asserts that a copy of this certificate of origin was filed with other documentation at the Port of Houston as part of an entry procedure involving identical merchandise thereat on June 1, 1995. That entry was reviewed by Customs/Houston, and no blanket Certificate of Origin was found.
The Entry Summary (CF 7501) for each entry was timely completed to include, among other data, the line item “MX 2912.12.0000” as part of the description of the merchandise, “Free” as the rate of duty and “0.00” as the amount of duty.
The entries were randomly selected for NAFTA Compliance Measurement reviews. Customs Directive (CDIR) 099-3810-011 dated August 31, 1994, “establishes procedures for initiating an origin verification pursuant to Article 506 of the North American Free Trade Agreement (NAFTA). 19 CFR 181.72.” A Request for Information (CF 28) was prepared on October 31, 1995 and sent to PMI at its offices in Mexico City, Mexico, seeking certificates of origin for each entry. The CF 28 was responded to by an employee of PMI who mistakenly sent certificates of origin for a chemical other than ethanal/acetaldehyde.
A Notice of Action (CF 29) was prepared and sent to PMI at its offices in Mexico City, Mexico, on May 1, 1996; it was received on May 16, 1996. PMI telephoned Mr. Philip T. Cowen, a licensed Customs Broker in Brownsville, Texas. Thus, on May 16, 1996, acting as agent for PMI, Mr. Cowen sent the proper certificates of origin to Customs/Houston under cover of an explanatory letter following a facsimile transmission of the letter and certificates that was also sent to Customs/Houston.
On or shortly after May 16, 1996, Mr. Cowen telephoned Customs/Houston to confirm receipt of the “fax” and to inquire of the status of the liquidation of the entries. The gist of that conversation was that liquidation would proceed as set forth in the CF 29 of May 1, 1996, the documentation submitted by Mr. Cowen notwithstanding, and that PMI could, at the appropriate time, protest the decision to liquidate the entries at the column 1 General rate rather than at the Special NAFTA rate. Attorney Brown filed just such a protest on August 15, 1996.
PMI has consistently refused to pay the liquidated duties, in consequence of which Customs made demand for payment upon the surety, Intercargo Insurance Company. The demand upon the surety was mailed from Customs National Finance Center on August 15, 1996. On November 7, 1996, Customs received and assigned number 5301-96-100494 to the protest filed by Intercargo. In addition to surety’s procedural claim, that its protest was timely filed, the surety stated on its protest that it “parallels and duplicates” or otherwise adopted the substantive points raised by its principal, the importer PMI, on principal’s protest no. 5301-96-100376. PMI had asserted that the denial of NAFTA preference, on the ground that no certificate of origin for the acetaldehyde was properly filed, lacks legal support because it had filed a blanket certificate with Customs/Houston with an entry of identical merchandise on June 1, 1995. Again, upon review, Customs/Houston found no blanket Certificate of Origin. The surety’s incorporation by reference of the importer’s protestable issue necessarily raises the same assertion. On September 14, 1999, this Office received from attorney T. Randolph Ferguson, on behalf of Intercargo, a “Supplement to Protest No. 5301-96-100494”. That “Supplement” was dated September 7, 1999 and appears to have been filed that same date with Customs/Houston. The “Detailed Reasons for Protest” set forth therein are in all material respects a restatement of the assertions made by the importer, PMI, in protest no. 5301-96-100376/5301-96-200154 and the surety, Intercargo, in protest no. 5301-96-100494.
ISSUE:
A. Whether protest 5301-96-200154 was timely filed by the importer, PMI;
B. Whether protest 5301-96-100494 was timely filed by the surety, Intercargo; and,
C. Whether Customs acted properly to advance the rate of duty and liquidate the entries at the column 1 General rate of duty rather than at the Special NAFTA rate of duty.
LAW AND ANALYSIS:
Timeliness -
As provided for in 19 U.S.C. 1514,
A protest of a decision, order, or finding described in subsection (a) of this section shall be filed with the Customs Service within ninety days after but not before--
(A) notice of liquidation or reliquidation, or
(B) in circumstances where subparagraph (A) is inapplicable, the date of the decision as to which protest is made.
. . .
19 U.S.C. 1514(c)(3)
Among the decisions, orders or findings of the Customs Service that are subject to protest are “the classification and rate and amount of duties chargeable.” 19 U.S.C. 1514(a)(2). As we noted, the liquidation of the entries occurred on May 24, 1996, and PMI filed its protest against the rate of duty applied against the entered merchandise on August 15, 1996. We find, therefore, that the PMI protest was timely filed within the ninety-day period and that the decision to which objection was taken is allowed by statute.
As further provided in 19 U.S.C. 1514,
. . .
A protest by a surety which has an unsatisfied legal claim under its bond may be filed within 90 days from the date of mailing of notice of demand for payment against its bond. If another party has not filed a timely protest, the surety’s protest shall certify that it is not being filed collusively to extend another authorized person’s time to protest as specified in this subsection.
19 U.S.C. 1514(c)(3)
The envelope in which the National Finance Center mailed demand for payment against the Intercargo surety bond was post- marked August 15, 1996. We find this date to be the date of mailing of the notice of demand for payment against Intercargo’s bond. We note that Intercargo’s protest was not filed collusively to extend PMI’s time to protest, inasmuch as PMI’s protest was timely filed. Finally, since Intercargo filed its protest on November 11, 1996, we find that the protest was timely filed, i.e., within 90 days from the date of mailing of the demand for payment against Intercargo’s surety bond.
Section 174.14, Customs Regulations (19 CFR 174.14), provides in part that a protest “may be amended at any time prior to the expiration of the 90-day period within which such protest may be filed . . . .” Mr. Ferguson wrote:
“On the basis of the foregoing, it is respectfully submitted that the imported acetaldehyde may be properly reliquidated, As Entered, under ‘MX 2912.12.0003'.
“Respectfully submitted this 1st day of September, 1999.”
Inasmuch as Intercargo’s protest was filed November 11, 1996, and the “Supplement” was filed on September 7, 1999, the language used by attorney Ferguson at least suggests that he knew that what he was submitting was not a timely filed amendment to that protest. Of course, “a reviewing officer may consider alternative claims and additional grounds or arguments submitted in writing by the protesting party . . . at any time prior to disposition of the protest. . . .” 19 CFR 174.28 in pari materia with 19 CFR 174.28. Whether or not attorney Ferguson’s filing of September 7, 1999 was a timely amendment to protest no. 5301-96-100376/5301-96-200154 or presented grounds or arguments in addition to those presented by Intercargo, we find that the arguments presented by Intercargo are legally sufficient for us to meet our obligation to decide whether Customs liquidated the entries at issue in accordance with the governing statutes and regulations.
Propriety of Rate Advance -
We first note that the issue presented is not one concerning a post-importation claim for a refund of duties pursuant to 19 U.S.C. 1520(d). As provided, in part, therein,
notwithstanding the fact that a valid protest was not filed, the Customs Service may, in accordance with regulations prescribed by the Secretary, reliquidate an entry to refund any excess duties paid on a good qualifying under the rules of origin set out in section 202 of the North American Free Trade Agreement Implementation Act for which no claim for preferential tariff treatment was made at the time of importation, if the importer, within 1 year after the date of importation, files, in accordance with those regulations, a claim that includes--
(1) a written declaration [etc.]
(2) copies of . . . NAFTA Certificates of Origin [etc.]
(3) such other documentation [etc.]
19 U.S.C. 1520(d). In the present case, a protest has been timely filed; indeed, two protests, each timely, have been filed, wherein the protestants seek a refund of duties per se, as distinguished from a protest of a decision to refuse to reliquidate for a failure to claim NAFTA duty preference.
NAFTA procedures are implemented in Part 181, Customs Regulations. The obtaining of preferred duty benefits under NAFTA is basically a two-step process: origin must be demonstrated, then a claim must be made. Thus,
A Certificate of Origin shall be employed to certify that a good being exported either from the United States into Canada or Mexico or from Canada or Mexico into the United States qualifies as an originating good for purposes of preferential tariff treatment under the NAFTA.
19 CFR 181.11(a)
In connection with a claim for preferential tariff treatment for a good under the NAFTA, the U.S. importer shall make a written declaration that the good qualifies for such treatment. The written declaration may be made by including on the entry summary, or equivalent documentation, the symbol “CA” for a good of Canada, or the symbol “MX” for a good of Mexico, as a prefix to the subheading of the HTSUS under which each qualifying good is classified. Except as otherwise provided in § 181.22 of this part and except in the case of a good to which appendix 6.B to Annex 300-B of the NAFTA applies (see, however, § 12.132 of this chapter)[textiles], the declaration shall be based on a complete and properly executed original Certificate of Origin, or a copy thereof, which is in the possession of the importer and which covers the good being imported.
19 CFR 181.21. Compare HQ 227594 (April 21, 1999). Each Entry Summary that was part of the file concerning the protest of Customs refusal to reliquidate entries pursuant to 19 U.S.C. 1520(d) could have been a “declaration” under 19 CFR 181.21(a); however, no claim for preference was made at the time of importation.
Section 181.22 of Part 181, Customs Regulations, concerns the maintenance of records and submission of the NAFTA Certificate of Origin by the importer. That section provides in pertinent part as follows:
. . .
(b) Submission of Certificate. An importer who claims preferential tariff treatment on a good under § 181.21 of this part shall provide, at the request of the port director, a copy of each Certificate of Origin pertaining to the good which is in the possession of the importer. A Certificate of Origin submitted under this paragraph . . .
. . .
(4) Shall be accepted by Customs for four years after the date on which the Certificate was signed by the exporter or producer; and
(5) May be applicable to:
(i) A single importation . . .
(ii) Multiple importations of identical goods into the United States that occur within a specified period, not exceeding 12 months, set out therein by the exporter or producer.
(c) Acceptance of Certificate. 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 the 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. . . .
19 CFR 181.22.
Subpart G (of Part 181, Customs Regulations), sets forth the purpose and procedures for NAFTA origin verifications and determinations. In particular, preferential tariff treatment may be denied:
Except where a Certificate of Origin either is not submitted when requested under § 181.22(b) of this part or is not acceptable and a corrected Certificate is not submitted or accepted as provided in § 181.22(c) of this part and except as otherwise provided in § 181.23 of this part and except in the case of a pattern of conduct provided for in § 181.76(c) of this part, Customs shall deny preferential tariff treatment on an imported good, or shall deny a post importation claim for a refund filed under subpart D of this part, only after initiation of an origin verification under § 181.72(a) of this part which results in a determination 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.
19 CFR 181.71
As provided in Section 181.72 “Verification scope and method”:
(a) General. Subject to paragraph (e) of this section, Customs may initiate a verification in order to determine whether a good imported into the United States qualifies as an originating good for purposes of preferential tariff treatment under the NAFTA as stated on the Certificate of Origin pertaining to the good. Such a verification:
(1) May also involve a verification of the origin of a material that is used in the production of a good that is the subject of a verification under this section;
(2) May include verification of the applicable rate of duty applied to an originating good in accordance with Annex 302.2 of the NAFTA and may include a determination of whether a good is a qualifying good for purposes of Annex 703.2 of the NAFTA; and
(3) Shall be conducted only by means of one or more of the following:
(i) A verification letter which requests information from a Canadian or Mexican exporter or producer, including a Canadian or Mexican producer of a material, and which identifies the good or material that is the subject of the verification. The verification letter may be on Customs Form 28 or other appropriate format and may be sent:
(A)By certified or registered mail, or by any other method that produces a confirmation of receipt by the exporter or producer; or
(B) By any other method, regardless of whether it produces proof of receipt by the exporter or producer;
(ii) A written questionnaire sent to an exporter or a producer, including a producer of a material, in Canada or Mexico. The questionnaire:
(A) May be sent by certified or registered mail, or by any other method that produces a confirmation of receipt by the exporter or producer; or
(B) May be sent by any other method, regardless of whether it produces proof of receipt by the exporter or producer; and
(C) May be completed by the Canadian or Mexican exporter or producer either in the English language or in the language of the country in which that exporter or producer is located;
(iii) Visits to the premises of an exporter or a producer, including a producer of a material, in Canada or Mexico to review the types of records referred to in § 181.12 of this part and observe the facilities used in the production of the good or material; and
(iv) Any other method which results in information from a Canadian or Mexican exporter or producer, including a Canadian or Mexican producer of a material, that is relevant to the origin determination. The information so obtained may form a basis for a negative determination regarding a good (see § 181.75(b) of this part) only if the information is in writing and is signed by the exporter or producer.
(b) Applicable accounting principles. Any verification of a regional value content requirement undertaken pursuant to paragraph (a) of this section shall be conducted in accordance with the Generally Accepted Accounting Principles applied in the country from which the good was exported to the United States.
(c) Inquiries to importer not precluded. Nothing in paragraph (a) of this section shall preclude Customs from directing inquiries or requests to a U.S. importer for documents or other information regarding the imported good. If such an inquiry or request involves requesting the importer to obtain and provide written information from the exporter or producer of the good or from the producer of a material that is used in the production of the good, such information shall be requested by the importer and provided to the importer by the exporter or producer only on a voluntary basis, and a failure or refusal on the part of the importer to obtain and provide such information shall not be considered a failure of the exporter or producer to provide the information and shall not constitute a ground for denying preferential tariff treatment on the good.
(d) Failure to respond to letter or questionnaire:(1) Nonresponse to initial letter or questionnaire. If the exporter or producer, including a producer of a material, fails to respond to a verification letter or questionnaire sent under paragraph (a)(2)(i) or (a)(2)(ii) of this section within 30 calendar days from the date on which the letter or questionnaire was sent, or such longer period as may be specified in the letter or questionnaire, Customs shall send a follow up verification letter or questionnaire to that exporter or producer. The follow up letter or questionnaire:
(i) Except where the verification letter or questionnaire only involved the origin of a material used in the production of a good and was sent to the producer of the material, may include the written determination referred to in ?_181.75 of this part, provided that the information specified in paragraph (b) of that section is also included; and
(ii) Shall be sent:
(A) By certified or registered mail, or by any other method that produces a confirmation of receipt by the exporter or producer, if so requested by the customs administration of Canada or Mexico from which the good was exported; or
(B) By any method, if no request under paragraph (d)(1)(ii)(A) of this section has been made by the Canadian or Mexican customs administration.
(2) Nonresponse to follow up letter or questionnaire:
(i) Producer of a material. If a producer of a material fails to respond to a follow up verification letter or questionnaire sent under paragraph (d)(1) of this section, Customs may consider the material to be non originating for purposes of determining whether the good to which that material relates is an originating good.
(ii) Exporter or producer of a good. If the exporter or producer of a good fails to respond to a follow up verification letter or questionnaire sent under paragraph (d)(1) of this section, Customs may consider the good to be non originating and consequently may deny preferential tariff treatment on the good as follows:
(A) If the follow up letter or questionnaire included a written determination as provided for in paragraph (d)(1)(i) of this section and the exporter or producer fails to respond to the follow up letter or questionnaire within 30 calendar days or such longer period as specified therein:
(1) From the date on which the follow up letter or questionnaire and written determination were received by the exporter or producer, if sent pursuant to paragraph (d)(1)(ii)(A) of this section; or
(2) From the date on which the follow up letter or questionnaire and written determination were either received by the exporter or producer or sent by Customs, if sent in accordance with paragraph (d)(1)(ii)(B) of this section; or
(B) Provided that the procedures set forth in §§ 181.75 and 181.76 of this part are followed, if the follow up letter or questionnaire does not include a written determination as provided for in paragraph (d)(1)(i) of this section and the exporter or producer fails to respond to the follow up letter or questionnaire within 30 calendar days or such longer period as specified in the letter or questionnaire:
(1) From the date on which the follow up letter or questionnaire was received by the exporter or producer, if sent pursuant to paragraph (d)(1)(ii)(A) of this section; or
(2) From the date on which the follow up letter or questionnaire was either received by the exporter or producer or sent by Customs, if sent in accordance with paragraph (d)(1)(ii)(B) of this section.
(e) Calculation of regional value content under net cost method: (1) General. Where a Canadian or Mexican producer of a good elects to calculate the regional value content of a good under the net cost method as set forth in General Note 12, HTSUS, and in the appendix to this part, Customs may not, during the time period over which that net cost is calculated, conduct a verification under §181.72(a) of this part with respect to the regional value content of that good.
You claim that PMI’s failure to provide a NAFTA Certificate of Origin within 30 days of the issuance of the CF 29 on May 1, 1995, was a violation of Customs Directive 099-3810-011, Subject: Origin Verifications Under the North American Free Trade Agreement (NAFTA), issued August 31, 1994, which warranted your May 24, 1996 liquidation at the column 1 General rate of duty.
First we note that the procedures governing NAFTA origin verification investigations are set forth in Customs Regulations. Customs internal operations directive 099-3810-011 does not have the full force and effect of law, as would a regulation promulgated in compliance with the Administrative Procedures Act (5 U.S.C. 551 et seq.). At a minimum, such a directive would have had to have been issued subject to the notice and comment provisions of the APA. See Brow v. Secretary of Health & Human Services, 627 F.Supp. 1467 (USDCDVT 1986). Clearly, in this case, the Customs Regulations and not the Customs directive sets the standards of conduct to which the importer shall be held.
Customs/Houston states that no blanket Certificate of Origin was found upon review of the June 1, 1996 entry, thus puts in dispute PMI’s claim that a blanket Certificate of Origin was filed at that time. We observe from the file that Customs never put PMI on notice that the original blanket NAFTA Certificate of Origin was illegible or defective or not completed in accordance with 19 CFR 181.22(b), as Customs would be required to do. See 19 CFR 181.22(c). Whether or not PMI filed a blanket Certificate of Origin, acceptance of the Certificate is not a terminal event for the granting of NAFTA duty preference.
Again, pursuant to 19 CFR 181.22, preferential tariff treatment may be denied “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 . . . .” Thus, while Customs enforcement authority is broad, the procedures are tightly controlled:
Except where a Certificate of Origin either is not submitted when requested under § 181.22(b) of this part or is not acceptable and a corrected Certificate is not submitted or accepted as provided in § 181.22(c) of this part and except as otherwise provided in § 181.23 of this part and except in the case of a pattern of conduct provided for in § 181.76(c) of this part, Customs shall deny preferential tariff treatment on an imported good, or shall deny a post importation claim for a refund filed under subpart D of this part, only after initiation of an origin verification under § 181.72(a) of this part which results in a determination 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 [emphasis supplied]. . . .
19 CFR 181.71.
We find no documentation in the file supporting any of the exceptions to preferential tariff treatment. There is nothing to show that an original Certificate was not submitted, there is nothing to show that a corrected Certificate was ordered and not produced, there is nothing setting forth a prohibited pattern of conduct.
We do find, however, a copy of the Certificate sent to Customs on May 16, 1996, in response to the CF 29 of May 1, 1996. We consider this May 1, 1996, CF 29 to be the “follow-up letter” Customs is required to send pursuant to 19 CFR 181.72(d), where the importer has failed to respond within 30 days to the 19 CFR 181.72(a)(3)(i) “verification letter”. In this particular regard we note that this regulation affords the importer 30 days to reply to Customs initial inquiry; it does not, however, mean that Customs failure to follow-up within 30 days of the initial inquiry by Customs is a procedural flaw, and it certainly does not mean that the importer’s failure to respond within 30 days of the “initial letter” gives free rein to Customs. Hence, we find that the May 1, 1996 CF 29 was a follow-up to the failure to respond to Customs initial inquiry (the CF 28) on October 31, 1995. Since 19 CFR 181.72 allows the importer 30 days to respond to this follow-up inquiry, we find that the May 16, 1996, submission was timely and that the liquidation of the entries at the non-preferential rate of duty on May 24, 1996, was improper.
HOLDING:
Importer, PMI Trading Ltd., filed a timely protest, number 5301-96-200154, on August 15, 1996, within 90 days of the May 24, 1996, liquidation of entries protested.
Surety, Intercargo Insurance Company, filed a timely protest, number 5301-96-100494, on November 7, 1996, within 90 days of the August 15, 1996 mailing of notice of demand for payment against its bond.
PMI Trading Ltd. provided within 30 days of the follow-up demand for same, a copy of the NAFTA Certificate of Origin pertaining to the entries at issue. Since NAFTA duty preference was declared by appropriate annotations on the Entry Summary forms for each entry, and a copy of the NAFTA Certificate of Origin was timely filed, liquidation at the column 1 General rate of duty was improper.
The protests should be allowed.
In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 193, Subject: Revised Protest Directive, you are to mail this decisions, together with the Customs Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entries in accordance with this decision must be accomplished prior to mailing the decision.
Sixty days from the date of this decision, the Office of Regulations and Rulings will make this decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.treas.gov by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
[William G. Rosoff, for]
John A. Durant, Director
Commercial Rulings Division