CLA-2 RR:CR:GC 960754 PH
Service Port Director
U.S. Customs Service
312 Fore Street
Portland, Maine 04112
RE: Protest 0101-97-100059; Freightliner truck; Canadian article;
NAFTA certificate; verification; Automotive Products Trade Act
(APTA); General Notes 5 and 12, HTSUS; 19 CFR 10.84; HQ 222654
Dear Port Director:
This is in response to Protest 0101-97-100059, which
pertains to the denial of free entry under the Automotive
Products Trade Act (APTA) of 1965, as amended, for a Freightliner
truck.
FACTS:
The merchandise is invoiced as a used Freightliner truck
tractor, model FLD12064ST, serial number 2FUYDXB5KV325399. The
merchandise was entered on September 12, 1996, with
classification under subheading B8701.20.0080, Harmonized Tariff
Schedule of the United States (HTSUS) (the "B" in the entered
subheading represents a claim for duty-free treatment under
APTA).
Customs issued two Requests for Information (Customs Form
28) for the entry (the date of the second request is October 17,
1996). The information requested was: (1) a copy of the contract
(or purchase order and seller's confirmation thereof) covering
the transaction and any revisions thereto; and (2) other
information described as follows:
The rules of origin under APTA are the same rules of origin
for [the North American Free Trade Agreement (NAFTA)].
Therefore, please provide details to support the claim that
this vehicle qualifies under APTA. Such proof may consist
of materials used in the production and relevant regional
value content information.
In the file there is a NAFTA Certificate of Origin for the
merchandise, listing the protestant as the exporter and importer,
and indicated to have been prepared (although not signed) by the
protestant. The date of preparation on the Certificate is
February 25, 1997.
The entry was liquidated on February 28, 1997, with duty in
the amount of $489.00 (on the basis that duty-free treatment
under APTA was denied). On May 29, 1997, the importer filed the
protest. The protestant argued that the "... since 1965 complete
motor vehicles of Canada have been granted APTA status regardless
of the status of the importer." The protestant enclosed with the
protest a copy of the above-described NAFTA Certificate of
Origin.
Also in the file is a letter dated September 4, 1996, from
Freightliner Corporation of Portland, Oregon, stating that the
merchandise (identified by model and serial number) was
manufactured in June 1988 in Burnaby, British Columbia, and that
it complied with United States Federal Motor Vehicle Safety
Standards (with two noted exceptions) and all United States
Environmental Protection Agency requirements.
The subheading under consideration is as follows:
8701.20.0080: Tractors (other than tractors of heading 8709):
... Road tractors for semi-trailers ... Used.
The 1996 general column one rate of duty for goods classifiable
under this provision is 4% ad valorem; goods classifiable under
this provision which are eligible for tariff treatment under the
APTA receive duty-free treatment.
ISSUE:
Whether the truck qualifies for duty-free treatment under
APTA.
LAW AND ANALYSIS:
Initially, we note that the protest was timely filed (i.e.,
within 90 days after but not before the notice of liquidation;
see 19 U.S.C. 1514(c)(3)(A)) and the matter protested is
protestable (see 19 U.S.C. 1514(a)(2) and (5)).
General Note 5(a), HTSUS, provides that motor vehicles and
original motor-vehicle equipment which are Canadian articles and
which fall in provisions for which the rate of duty "Free (B)"
appears in the "Special" subcolumn may be entered free of duty
under the APTA. In accordance with Note 5(a)(i) the term
"Canadian article" means an article which originates in Canada,
as defined in General Note 12.
Paragraph (b) of General Note 12, HTSUS, establishes the
criteria under which goods imported into the customs territory of
the United States qualify as originating goods for NAFTA purposes
(i.e., to qualify as originating goods, goods must be wholly
obtained or produced in the territory of Canada, Mexico and/or
the United States, have been transformed in the territory of
Canada, Mexico and/or the United States so that each of the non-originating materials used in the production of the goods
undergoes a change in tariff classification described in General
Note 12(r), (s) and (t), or otherwise meet the requirements of
General Note 12(b)).
The Customs Regulations issued under APTA are found in 19
CFR 10.84. Under section 10.84(a):
... To claim exemption from duty under the [APTA], an
importer must establish, to the satisfaction of the
appropriate Customs officer, that the article in question
qualifies as a "Canadian article" [see above]. The Customs
officer may accept as satisfactory evidence a certificate
executed by the exporter as set forth in paragraph (b) of
this section, subject to any verification he may deem
necessary. Alternatively, the Customs officer may determine
that under the circumstances of the importation a
certificate is unnecessary. [Emphasis added.]
In HQ 222654 dated March 22, 1991, we applied the above
provision to a protest of the denial of APTA treatment,
specifically raising the question of "... how much authority [the
provision] gives [the appropriate Customs officer] in making
decisions on claims for duty-free treatment under APTA." We
concluded that the Customs officer "... legitimately and properly
exercised his right to request copies of purchase orders from the
protestant pursuant to 19 CFR 10.84."
Similarly, in this case, Customs "... legitimately and
properly exercised [its] right ..." to verify the APTA claim as
deemed necessary under section 10.84(a) (above). That is, in the
two Requests for Information, Customs sought a copy of the
contract (or purchase order and seller's confirmation thereof)
covering the transaction and any revisions thereto (as in HQ
222654), as well as details to support the claim that the vehicle
qualifies under APTA.
The protestant did not provide the required information.
Further, the required information has still not been provided.
In this regard, we note that none of the documents submitted with
the protest address the criteria in General Note 12(b) for
originating goods, even though the Requests for Information
described information which could meet these criteria.
Therefore, as in HQ 222654, the protest is denied.
HOLDING:
The truck does not qualify for duty-free treatment under
APTA.
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, with
the Customs Form 19, by your office 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, Freedom of Information Act, and other
public access channels.
Sincerely,
John Durant, Director,
Commercial Rulings Division