CLA-2 RR:CR:SM 562030 TJM
Area Port Director
Attn: Entry Branch Division
US Customs Service
3600 E Paisano Drive, Bldg. “B”
El Paso TX 79905
RE: Protest and AFR No. 2402-00-100041; NAFTA Certificate of Origin; circuit breakers; 19 CFR 181.71; 19 CFR 181.72.
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.
This protest concerns the denial of the NAFTA preferential duty rate for the importation of electronic components (circuit breakers) produced in Mexico by Industria de Trabajos and imported into the United States by Siemens Energy and Automation. This protest is filed by F.C. Felhaber & Co., CHB, on behalf of its client, Siemens Energy and Automation.
On June 12, 2000, the protestant entered into the United States products described as circuit breakers (classified as MX 8536.20.0020). On June 26, 2000, Customs issued a CF-28 (Request for Information) for the CF 434 (NAFTA Certificate of Origin). The CF-28 stated: “In accordance with the procedures set out in Section A, Articles 501 and 502 of the NAFTA agreement, please provide a NAFTA certificate of origin for the merchandise claimed under NAFTA and imported on the above entry, tariff and invoice numbers.”
After 30 days had passed, on August 8, 2000, Customs issued a CF-29. The CF-29 stated: “This office has not received a response to the CF28 Request for Information dated June 26, 2000. If this office does not receive the requested NAFTA Certificate of Origin within 20 days from the date of this request the classification will be rate advanced and fully dutiable at a rate of 2.7%.”
On August 17, 2000, in response to the CF-29, the protestant submitted a blanket NAFTA Certificate of Origin covering the period from January 1, 2000 to December 31, 2000. The Certificate of Origin was signed and dated August 16, 2000. This Certificate of Origin did not encompass the specific goods that were entered on June 12, 2000. The Certificate covered goods listed on invoice PT-00241521, while the June 12, 2000, entry encompassed goods listed on invoice PT-00241520.
On September 14, 2000, Customs issued a CF-29 Notice of Action denying the NAFTA claim for the June 26, 2000, entry. The basis of the denial included: 1) submitting a Certificate of Origin that did not cover the products entered on the relevant entry; and 2) submitting a Certificate of Origin with a signature date that was after the entry (entry was on June 23, 2000, and the signature date of the Certificate was August 16, 2000).
Customs port liquidated the goods at issue on October 6, 2000, with a rate advance. The protestant timely filed this protest and an application for further review with the port on October 17, 2000. Attached to the protest, the protestant submitted a blanket Certificate of Origin correctly covering the products entered on June 26, 2000, (corresponding to invoice PT-00241520) with a signature date of January 3, 2000.
The protestant states that the exporter in consultation with the importer processes their Certificate of Origin in December prior to the blanket period of the Certificate and maintains it electronically on a database. The importer also can remotely access this electronic database. The protestant states that when requested by a customer, the U.S. Customs Service, or the Mexican Customs Service, the certificate is printed on paper, signed, and dated with the date of signing. In a letter dated October 17, 2000, submitted with the protest, the protestant stated, in pertinent part, that:
[w]e also mentioned to U.S. Customs that there [sic] certificates are kept on a data base at the exporters premises. When a customer, U.S. Customs or Mexican Customs requests a N.A.F.T.A. certificate, our client prints them out showing the correct date [date of printing] and signature. For this reason you will assume that the certificate was not on file, however, they have been on file since December. . . .In the future we will file [submit] this same certificate printed in January instead of printing a new certificate for each request [by Customs].
On March 20, 2001, the protestant advised this office by telephone that the importer has full access to the exporter’s electronic database. On March 21, 2001, the protestant memorialized the telephone conversation and transmitted the summary via facsimile. It states in pertinent part, that:
The following serves to confirm our conversation and explain how Siemens, Inc. keeps their certificates of origin. . . .When U.S. Customs had requested certificates we had submitted them in a timely manner, the only problem is that the comptroller [of the exporter] signs the certificates as they are issued and does not back date these certificates. Because most plants are going towards a paperless environment, they should be allowed to sign when the document is printed. I would like to mention again that all cost information and certificates of origin are input in December for the next year.
Whether the denial of the NAFTA preferential duty rate claim in this case described above is consistent with Customs laws and regulations.
LAW AND ANALYSIS:
Possession at the time of the claim
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)
Customs Directive 3810-014, dated June 28, 1999, (superceding 099 3280-15, dated March 14, 1994), which provides guidelines to Customs officials on the use of the NAFTA Certificate of Origin, states in pertinent part that “Import Specialists shall request the Certificate of Origin as they deem appropriate to substantiate claims for preferential NAFTA treatment, allowing a reasonable amount of time for the importer to produce the Certificate. . . . and a reasonable amount of time will be 30 days.”
In the instant case, after the importer did not submit a Certificate of Origin within 30 days of its initial request, your office, although not required, provided an additional 20 days for the importer to respond. The importer provided a Certificate of Origin, although defective, within this additional time period allowed by your office.
Your office claims that because the Certificate, which the importer submitted on August 17, 2000, was dated after the date of entry, the evidence does not show that the importer possessed the Certificate at the time of the claim, as required by 19 C.F.R. § 181.21(a).
Valid Certificate of Origin
19 C.F.R. § 181.21(a) requires that a NAFTA claim shall be based on a complete and properly executed original Certificate of Origin, or copy thereof. Your office asserts that the importer in the instant case did not possess a complete and properly executed Certificate at the time of the claim because the Certificate was not signed or dated until a copy was requested. In other words, the substantive data of the Certificate existed electronically, but the date and signature was not completed manually until a copy of the Certificate was requested. However, the protestant states that the certificates of origin are processed in December prior to the blanket-year period and the substance of the CF 434 is inputted into the electronic database at that time. The protestant states that Customs officials at port have in the past seen the Certificate on the described database. The protestant claims that the method of storing the Certificate on the database and printing it out when requested has been a standard practice for several years, with the knowledge of the Customs port officials.
Section 181.22(c), Customs Regulations (19 CFR § 181.22(c)), states, in pertinent part, that a Certificate of Origin shall be accepted by the port director as valid, provided that “the Certificate is completed, signed and dated in accordance with the requirements of paragraph (b) of this section.” Section 181.22(b) requires that the Certificate of Origin must pertain to the goods entered, be on CF 434 or another approved form, shall be signed by the exporter or its representative having knowledge of the facts, and shall be in English or the language of the exporting country.
Customs Directive 3810-014, dated June 28, 1999, reflecting Customs Regulations, states in paragraph 5.7 that "Certificates are valid provided they are properly completed, signed and dated. A Certificate should be completed to allow the Import Specialist to establish whether the goods it covers are entitled to preferential tariff treatment.”
A critical factor before us is whether the importer claimed the NAFTA preference based on a complete and properly executed Certificate of Origin as required by 19 C.F.R. § 181.21(a). The fact that the Certificate was not signed and dated until the Certificate was physically printed is prima facie evidence that the protestant did not possess a complete and properly executed Certificate at the time of the claim. Therefore, the protest should be denied.
In the instant case, the exporter entered the data of a NAFTA Certificate of Origin in a computer database before an entry was made. However, an actual Certificate was not signed and dated until a Certificate was requested. This fact is prima facie evidence that the importer’s NAFTA claim was not based on a complete and properly executed Certificate of Origin possessed at the time of the importation. Therefore, the protest should be denied 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.
Commercial Ruling Division