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HQ 561901

January 24, 2001

CLA-2 RR:CR:SM 561901 KSG


Port Director
U.S. Customs Service
International Bridge
Hidalgo, Texas 78557

RE: Application for Further Review of Protest No. 2304-99-100356; submission of NAFTA certificate of origin;

Dear Director:

This is in reference to a Protest and Application for Further Review timely filed on behalf of Amex Distributing Co. Inc., contesting the denial of duty-free treatment under the North American Free Trade Agreement (“NAFTA”), to imported mangos.


Amex Distributing Co. Inc. imported fresh mangos from Mexico on June 23, 1999. The goods were entered with the NAFTA “MX” prefix. On July 7, 1999, Customs sent a Customs Form 28 to the importer with a copy to the broker, asking for the NAFTA Certificate of Origin to be provided within 30 days from the date of the notice. Your office states that no certificate was presented.

On September 2, 1999, Customs sent out a Notice of Action giving the protestant notice of a rate advance. The broker submitted a Certificate of Origin on October 14, 1999. The entry was liquidated on October 22, 1999, as fully dutiable because Customs determined that the NAFTA Certificate of Origin was not timely filed.

The protestant states that the certificate was presented timely via fax, by the broker. In support of this contention, the broker submitted a fax transmission verification report dated July 4, 1999, which reflects a fax number that is not the Customs fax number for your Port.


Whether Customs properly denied NAFTA duty treatment for the entry in this case.


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.

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 099 3280-15, dated March 14, 1994, which provides guidelines for use of the NAFTA Certificate of Origin, states, in pertinent part, that “Customs shall give importers a reasonable amount of time to submit a copy of the Certificate, generally 30 days.” The Directive further states that the certificate must be in the possession of the importer at the time preferential treatment is claimed and shall be presented to the Area/District Director of Customs, or his or her designee, upon request.

In this case, the entry was filed on June 23, 1999, with a claim for NAFTA preferential duty treatment. Your office requested the supporting NAFTA Certificate of Origin on July 7, 1999. The Certificate was submitted on October 14, 1999, more than three months later. 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 that the protestant has failed to establish by any credible evidence that the Certificate of Origin was in its possession at the time the NAFTA preferential claim was made, we find that your office properly denied the NAFTA claim.


The importer has not shown that it had the NAFTA Certificate of Origin in its possession when NAFTA duty treatment was claimed for the entry and, therefore, Customs properly denied the NAFTA preferential claim. The protest should be denied in full.

In accordance with Section a(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 should be accomplished prior to mailing of this decision. Sixty days from the date of this 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.ustreas.gov, by means of the Freedom of Information Act, and other methods of public distribution.


John Durant, Director
Commercial Rulings Division

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