CLA-2 RR:CR:SM 561820 JLV
Director, Port of Huron
U.S. Customs Service
Port Huron, Michigan 48060
RE: Protest and Application for Further Review No. 3802-99-100030; validity of corrected NAFTA Certificate of Origin; corrected Certificate dated subsequent to date of entry and claim for NAFTA preference; 19 CFR 181.21, 181.22(b)(1) and 181.22(c)
Dear Port Director:
In a memorandum of June 20, 2000, you forward under 19 CFR 174.26(b)(1)(iv), for our consideration, protest and application for further review No. 3802-99-100030 which was filed against your decision to deny NAFTA preferential treatment for certain goods imported by Ontario Store Fixtures (OSF). OSF is the manufacturer, exporter and importer of the goods in question. At issue is the validity of the exporter’s Certificate of Origin issued by OSF. Our decision follows.
Protest No. 3802-99-100030, received September 22, 1999, concerns Entry No. 144-6446219-2 dated December 11, 1998, liquidated on June 25, 1999, and all the entries listed on a thirty-page schedule attached to the protest. The entries on the attached schedule were made between May 9 and July 18, 1998, and were liquidated as entered (duty-free under the NAFTA preference) between March 19 and May 28, 1999. The entries were subsequently reliquidated between June 25 and August 27, 1999.
Many of the entries listed on the attached schedule were reliquidated on the 91st day, or later, after the date of liquidation.
The following events are necessary for an understanding of the attempts by Customs to obtain certain information and the attempts by OSF to provide the information with respect to Entry No. 144-644-6219-2:
December 14, 1998: Port Huron contacted OSF’s broker by telephone to request a copy of the NAFTA Certificate of Origin
December 21, 1998: OSF’s broker submitted OSF’s self-produced combination form (Certificate of Origin and invoice), signed and dated on November 27, 1998.
December 31, 1998: Port Huron advises OSF’s broker that the Certificate was not on an approved form for OSF and requests, in writing, OSF’s broker to submit within five working days a valid Certificate of Origin or a copy of the letter of approval for OSF’s self-produced combination form.
January 7, 1999: OSF’s broker submits a Certificate of Origin signed and dated January 6, 1999, by OSF’s export supervisor. The Certificate of Origin referenced the original invoice (i.e., LA20797, the combination form submitted on December 21, 1998) and included all of the product-related information from OSF’s original self-produced combination form. It omitted information in block 2 (blanket period), block 3 (producer name) or block 4 (importer name).
January 26, 1999: Port of Huron advises, by telephone, OSF’s broker that the Certificate of Origin, dated 1/6/99, was unacceptable because (1) block 3 was not completed and (2) the date of signature was subsequent to the date of importation. It was recommended by Customs that OSF revise the document to indicate the blanket period in block 2 and complete the producer block.
January 27, 1999: OSF’s broker submitted a revised Certificate of Origin, but indicated the blanket period as 01-01-99 to 12-31-99. The document, however, still referred to the goods on the original invoice #LA20797.
February 5, 1999: OSF’s broker submitted a corrected Certificate of Origin which consisted of the Certificate submitted on January 27 with handwritten changes to the dates to reflect the blanket period as 01-01-98 to 12-31-98.
February 12, 1999: Port of Huron issues to OSF a Customs Form 28 and initiates a verification under Article 506 of the NAFTA and 19 CFR Part 181, Subpart G. Customs requests a bill of materials and Certificate of Origin for the goods and, if applicable, for the materials from its suppliers with respect to the goods of Entry No. 144-644-6219-2.
March 11, 1999: OSF responded but did not submit a Certificate of Origin other than the one that had been previously submitted on February 5.
June 9, 1999: Port of Huron issues Notice of Action on Customs Form 29. Customs denied NAFTA preference because OSF failed to submit a valid Certificate of Origin that had been in OSF’s possession at the time of entry of the goods when the claim for NAFTA was made.
June 25,1999: Entry No. 144-644-6219-2 was liquidated with a rate advance.
The protestant argues, in the first instance, that the corrected Certificate of Origin, submitted on February 5, is a valid certification for purposes of the NAFTA regulations. Protestant further argues that Section 10.112 of the Customs Regulations permits such a corrected certification, that rejection of the Certificate of Origin is an abuse of discretion because it was accepted by other Customs ports of entry, and that the rejection of the certification applies only to one entry and not to the list of other entries for which reliquidation was performed.
Customs, however, takes the position that, because the date of completion of the certificate (January 6,1999) is subsequent to the date of the entry of the goods, the certificate was not in the possession of the importer at the time of entry as required by the NAFTA and implementing regulations. Therefore, the Certificate of Origin is not a valid certificate in the possession of the importer at the time the claim for NAFTA is made.
The protestant also argues that, with respect to reliquidations that took place on or after the 91st day after liquidation, Customs was without authority to reliquidate. The Port of Huron Customs agrees with this and, therefore, those entries will be “liquidated as entered” and are not considered part of this application for further review.
Does the corrected Certificate of Origin, as submitted on February 5, 1999, satisfy the requirements of Subpart C of Part 181 of the Customs Regulations (19 CFR Part 181, Subpart C)?
LAW AND ANALYSIS:
In this case there is no suggestion that the importer was attempting to hide or misrepresent the facts or claims. The issue concerns the validity of the Certificate of Origin submitted by the importer. Section 181.21, Customs Regulations (19 CFR 181.21), implements the NAFTA requirement that a valid Certificate of Origin be in the possession of the importer at the time a claim for NAFTA preference is made. The form used by the exporter (also the manufacturer and importer) was a self-produced form for which its prior broker had obtained approval from Customs for use by that broker. We assume that the approval by Customs was based on the fact that this form contained all of the necessary information for a proper NAFTA Certificate of Origin. The manufacturer, when it changed brokers, continued to use the same format after inserting its own name in place of its previous broker’s name.
When the manufacturer, as requested, presented its Certificate of Origin to Customs, Customs rejected the document and requested a Certificate of Origin on an approved form. Under Section 181.22(b)(1) a Certificate of Origin must be on CF 434 or on such other form as approved by a Canadian or Mexican customs administration, or by the Office of Field Operations. Any alternative form must have the same information and certification set forth in CF 434. We assume that the exporter’s Certificate of Origin, submitted by the importer, was not an “approved” alternative for that manufacturer because it was based on a form approved for its previous broker.
When a port director determines that a Certificate of Origin is defective or has not been completed in accordance with paragraph (b) of Section 181.22, the importer shall be given not less than 5 days to submit a corrected Certificate. Section 181.22(c). The submitted Certificate is such a “defective” Certificate. In order to correct such a defect in the form of a Certificate it would require that a new Certificate be prepared. A new Certificate, however, would have to be signed, and the date of the signature would necessarily be, in this case, subsequent to the date of the entry on which the NAFTA claim was originally made. Such a corrected document should reflect the actual date on which the corrected document is signed because the new date should provide an accurate record of the fact that this is a “corrective action.”
Section 181.22(c) does not specify what type of “defect” may be corrected. It merely states that, if a Certificate is defective or otherwise fails because it has not been completed in accordance with paragraph (b) of that section, the importer shall have a chance to correct it. On December 31, 1998, the importer’s broker was notified that the Certificate for Entry No. 144-644-6219-2 was unacceptable because it was not on an approved form. A new Certificate, on an approved form, was prepared and it included a specific reference to the original document (i.e., to the goods, the exporter, the date of signing that antedated the entry and claim for NAFTA preference). This corrected Certificate was dated January 6, 1999, because it was completed on that date in order to correct the Certificate found by Customs to be defective.
Section 181.22(c) provides that a Certificate shall be accepted if it is completed, signed and dated in accordance with paragraph (b), but it also provides that an importer shall be allowed to submit a corrected Certificate and, if accepted, will be granted the NAFTA preference. In this case the imported had initially submitted a defective certificate (unapproved form with producer’s name on it, block for producer’s name not completed). Customs, by written notice on December 31, 1998, gave the importer an opportunity to submit a corrected Certificate. The importer initially submitted a corrected Certificate on an approved form, but failed to complete the block for the producer’s name. By oral communication, Customs explained that the importer should make two more corrections, i.e., complete the block for the producer’s name and indicate the period for the blanket certification. The importer quickly responded, but put in the incorrect year for the certification period. This was soon corrected by the importer and an amended Certificate was finally submitted on February 5, 1999.
On February 12, 1999, a verification of the NAFTA claim on Entry No. 144-644-6219-2 was initiated. On June 9, 1999, Customs notified the importer that the NAFTA claim was denied because the Certificate was invalid. The Certificate, submitted on February 5 was determined to be invalid because it was signed on January 6, 1999, a time which was subsequent to the NAFTA claim made at entry. In all other respects, the Certificate apparently satisfies the requirements for a valid Certificate of Origin. The changes made by pen merely correct the Certificate to reflect the fact that these were the same goods identified on the original defective Certificate, i.e., combination form #LA20797. The facts had not changed.
For purposes of Section 181.22(c), if a Certificate is on an unapproved form, the remedy to correct the Certificate requires completion of a new form. It would be inappropriate, in such a case, to require the backdating of the new form, provided it was clear that the new form is submitted in response to a request by Customs for correction of the Certificate of Origin possessed by the importer at the time of the NAFTA claim.
For purposes of an unliquidated entry and provided the substantive information does not change, such a Certificate which is corrected at the request of Customs and which refers to the original defective Certificate of Origin, would be a valid Certificate when completed on an approved form even though it is dated at the time the corrected Certificate is completed.
In view of this, it is not necessary to address the other arguments presented by the protestant.
The Certificate of Origin, corrected at the request of Customs by the importer on February 5, 1999, is a valid Certificate of Origin. Under Section 181.22(c) this Certificate should be accepted by Customs. The NAFTA claim should be allowed, provided, however, that the goods have not actually been determined not to qualify for NAFTA tariff preference.
In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, you are to mail this decision, together with the Customs Form 19, to the Protestant no later than 60 days from the date of this letter. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing the decision.
Sixty days from the date of the decision, the Office of Regulations and Rulings will 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 and by means of the Freedom of Information Act and other methods of public distribution.
John A. Durant, Director
Commercial Rulings Division