CLA-2 RR:CR:SM 561862 TJM
Area Port Director
US Customs Service
Attn: Entry Unit
9901 Pacific Highway
Blaine WA 98230
RE: Protest and AFR No. 3004-99-100211; NAFTA Certificate of Origin; Scrap Meters; 19 CFR 181.21(a).
Dear Port Director:
The above referenced protest was forwarded to this office for further review. 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 June 13, 1999, the protestant imported 2,000 scrap meters from Canada. The goods were entered on June 24, 1999. The merchandise was classified as CA 9028.10.0000, thereby claiming the NAFTA preferential duty rate. On July 1, 1999, U.S. Customs Service (“Customs”) issued a CF-28 Request for Information. Customs requested that the protestant provide various information for valuation purposes and a NAFTA certificate of origin for the scrap meters. Paragraph 5 on the back of CF 28 states that “If a reply cannot be made within 30 days from the date of this request or if you wish to discuss any of the questions designated for your reply, please contact the Customs officer whose name appears on the front of this form.” After the 30-day period lapsed, Customs issued a CF 29 Notice of Action on August 9, 1999, informing the protestant that the NAFTA preference has been denied. Customs stated that:
On July 1, 1999, a CF 28 Request for Information was issued by this office, requesting a copy of the Certificate of Origin (CF 434) which was used as a basis for your NAFTA claim on the above referenced entry. Inasmuch as no response has been received to this Request for Information, pursuant to CD 099-3810-011 dated August 31, 1994, your claim for NAFTA preference on these goods has been denied.
Subsequently, on August 10, 1999, the protestant submitted to Customs a blanket NAFTA Certificate of Origin (CF 434) dated January 28, 1999, covering the period January 1, 1999, to December 31, 1999. Protestant stated to Customs on August 10, 1999, that it was still waiting for the return of other requested documents. On August 13, 1999, the protestant submitted the remainder of the documents requested by Customs. The goods were liquidated on September 17, 1999, without the NAFTA preferential duty rate.
The protestant contends that it had the Certificate of Origin on file at the time of the NAFTA claim. Protestant claims that it was waiting to receive the additional documents requested by Customs other than the Certificate of Origin before submitting all the requested documents to Customs in entirety.
The protestant timely filed the protest and an application for further review with Customs on November 29, 1999. The application for further review was approved and forwarded to our office on August 23, 2000.
On January 23, 2001, the protestant submitted via facsimile copies of a facsimile transmission dated January 23, 1999, which contains two NAFTA Certificates of Origin from the Canadian exporter to the protestant. Included is the Certificate of Origin for the goods at issue in this case. The facsimile is date and time stamped with a cover sheet. The hard copies of the submission were subsequently sent to this office by postal mail.
ISSUE:
Whether the protestant had the NAFTA Certificate of Origin in its possession at the time of the NAFTA preferential duty rate claim, as required by 19 CFR 181.21(a).
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 (“HRL”) 228506, Customs 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 HRL 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 contrast, in HRL 561901, Customs denied a protest upon further review because the evidence submitted to rebut the presumption that the importer did not have the Certificate of Origin in possession at the time of the claim was not sufficient. It states in pertinent part that:
In support of its contention that the Certificate was faxed to Customs on July 4, 1999 (three days before it was requested), protestant has submitted a “transmission verification report“ dated July 4, 1999. However, the report includes no description of the document that was faxed and, in fact, reflects that the fax was sent to a number that is not the fax number for your Port. In view of the above, as the protestant has failed to establish by any credible evidence that the Certificate of Origin was in its possession at the time of the NAFTA preferential claim was made, we find that your office properly denied the NAFTA claim.
Therefore, when a party does not provide a certificate of origin within 30 days of the request, there is a rebuttable presumption that the party did not have the certificate in its possession at the time of the claim. This presumption can be successfully rebutted by providing credible and sufficient evidence that the party had the certificate in its possession at the time of the claim.
In the instant case, the protestant has submitted to this office a copy of the facsimile transmission dated January 28, 1999. The transmission contains three pages: a cover sheet and two completed NAFTA Certificates of Origin. The facsimile cover sheet shows that it is a transmission from BC Gas Meter Shop, the Canadian exporter of the goods at issue to the protestant on January 28, 1999. On the cover page, the time of transmission is hand written at 1:00 P.M. All three pages of the facsimile transmission are date and time stamped by the facsimile machine at the top left-hand corner. The first page, which is the cover page, is stamped by the facsimile machines as “File No. 493 01/28 ’99 12:41 ID: Lanierfax6500.” The second page, which is another Certificate of Origin, is stamped “File No. 493 01/28 ’99 12:42.” The third page, which is the Certificate of Origin at issue, is stamped at the top left-hand corner as “File No. 494 01/28 ’99 13:44 ID:Lanierfax6500.”
The Certificate of Origin relevant to this case is the third and last page. The copy of the Certificate of Origin included in the facsimile transmission is identical to the copy of the Certificate of Origin submitted to Customs port. The same date and time stamp exists on both copies. In the complete copy of the facsimile transmission, there is an hour difference between the time stamp on the second page and the third page, which is the certificate of origin at issue. However, the protestant asserted during a telephone conversation on January 24, 2001, that the last page most likely had to be resent due to incomplete or unreadable transmission.
Consistent with the ruling in HRL 228506, credible and sufficient evidence that the importer had the Certificate of Origin in its possession at the time of the claim will rebut the presumption that the importer did not have possession of the Certificate at the time of the claim. In the instant case, the evidence provided by the protestant supports the determination that the protestant received the Certificate of Origin from the Canadian exporter on January 28, 1999, well before the claim for NAFTA preference on June 24, 1999. The copy of the Certificate of Origin that Customs port received on August 10, 1999, is identical to the more complete evidence subsequently provided to this office, which shows that the Certificate of Origin was transmitted to the protestant almost six months before the time of the NAFTA claim.
Considering the totality of the evidence submitted, the facts support the determination that the protestant received the certificate of origin on January 28, 1999. Therefore, the evidence supports the claim that the protestant had the certificate in possession at the time of the NAFTA preference claim on June 24, 1999.
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. However, sufficient and credible evidence showing that the party possessed the certificate of origin at the time of the claim can rebut the above mentioned presumption. In the instant case, the protestant has provided sufficient evidence to rebut the above mentioned presumption and has shown that it possessed the Certificate of Origin at the time of the NAFTA preferential duty rate claim. Therefore, the protest should be granted 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,
John Durant
Director
Commercial Ruling Division