• HQ H196456
• May 16, 2012

• Type : Classification • HTSUS :

OT:RR:CTF:VS H196456 CMR

Port Director
U.S. Customs and Border Protection
6601 NW 25th Street
Room 272
Miami, FL 33122

RE: Protest and Application for Further Review Nos. 5201-11-100266 and 5201-11- 100309; Knit and woven garments; DR-CAFTA

Dear Mr. Suliveras:

On November 8, 2011, this office set aside the denials of further review issued by your port for Protest Nos. 5201-11-100266 and 5201-11-100309 and voided the denials of the protests. The protests were filed by Alston & Bird, LLP, on behalf of their client, School Apparel, Inc. We set aside the denials of further review because counsel raised arguments that the evaluation of affidavits of origin according to TBT-11-004 “Additional Documents Used to Verify Free Trade Agreement and Legislated Program Claims for Textiles and Wearing Apparel” presented questions of law not yet considered by CBP Headquarters. Specifically, in Protest No. 5201-11-100266, counsel argued that the port’s reasons for denying the preference claims presented new questions of law, including, whether an affidavit of origin must be on letterhead; whether an affidavit of origin may cover two or more separately identified and clearly described fabrics or yarns, whether CBP should deny preference claims when affidavits contain obvious typographical errors, and whether a date of sale is required on every affidavit of origin. We have reviewed the protests and the port’s comments. Our decision on both protests is set forth below.

FACTS:

Each protest deals with one entry of goods by School Apparel Inc. (SAI). The entries contained various knit and woven garments produced in a party to the Dominican Republic – Central America – United States Free Trade Agreement Implementation Act (DR-CAFTA) from U.S. origin fabric of U.S. origin yarn, or of fabric that had been designated as not available in commercial quantities, i.e., short supply fabric. SAI procures the fabric and supplies it to the garment producer.

The entries at issue were entered April 9, 2010 and August 5, 2010 claiming preferential tariff treatment under the DR-CAFTA. In both cases, the port issued a Customs and Border Protection (CBP) Form 28 requesting information. In the case of the earlier entry, the port requested valid DR-CAFTA certificates of origin; affidavits of origin from the thread, yarn and fabric producers; and proof of payment to the seller of the imported merchandise. With regard to the affidavits of origin, the port instructed that . . .

Affidavits must provide a complete description of the item produced (including fiber content), name of purchaser, date of sale, etc. Affidavits must include the name and physical address of the manufacturing facility as well as the telephone number for the person executing the affidavit for verification purposes.

For the latter entry, the CBP Form 28 requested the same information as requested in the earlier entry, but also requested cutting and sewing records for specific styles and samples of specific styles. As to the claim for garments produced using short supply fabric, the port requested “fabric specification sheets and mill certifications from the producers of the fabric which provide a description of the fabric that agrees with the descriptions reflected in the Annex 3.25 “short supply” listing.

With regard to the earlier entry, the port issued a proposed CBP Form 29 Notice of Action notifying SAI it intended to deny the DR-CAFTA claim due to insufficiency of documentation to support the claims. The company submitted additional information, but the port still found the documentation to be deficient and rate advanced the entry, liquidating it on January 3, 2011. By letter dated February 20, 2011, SAI protested the liquidation without benefit of the DR-CAFTA preferential rate. On July 5, 2011, counsel for the protestant filed a CBP Form 19, Protest Form, as a supplemental to the February 29, 2011 protest. Counsel claims the port did not treat the February 20, 2011 letter as a protest of its actions; however, this office views the letter to be such a protest and treats the CBP Form 19 and accompanying materials as supplemental to that protest.

As to the later entry, the port issued the CBP Form 28 on December 1, 2010. Although the company contacted the port in writing requesting additional time to respond due to holiday travel and factory closures, the port issued a proposed CBP Form 29, Notice of Action, on January 4, 2011, denying the DR-CAFTA claim for failure to respond. A CBP Form 29, Notice of Action, denying the DR-CAFTA claim for the same reason cited in the proposed action, i.e., failure to respond, was issued on January 26, 2011. The entry was liquidated on February 18, 2011 and the protest was filed on August 16, 2011. We note that revised documents were submitted with the protests to address the objections raised by the port with regard to certain documents previously submitted to support the claim for preferential tariff treatment. The revised documents include such revisions as including a date of sale on a blanket affidavit and submitting the document on letterhead paper.

As noted above, the port denied further review and issued denials of the protests. This office set aside the denials of the further review and voided the denials of the protests. We have considered the arguments of the port and counsel for the protestant. Among counsel’s arguments is that the port erred in not following the TBTs issued by CBP Headquarters providing instructions on the information to be contained in an affidavit or other declaration submitted to support a claim for preferential tariff treatment under a Free Trade Agreement (FTA). Our decision on both protests is set forth below.

ISSUES:

Was the documentation submitted to the port sufficient to support the claim for preferential tariff treatment under the DR-CAFTA?

LAW AND ANALYSIS:

The DR-CAFTA is implemented in the HTSUS in General Note (GN) 29. However, at issue in this case is not the question of whether the merchandise met the terms of the GN 29 per se, but whether the information submitted to substantiate the claim that the merchandise met the terms of GN 29 and that certain materials used in the manufacturer of the merchandise originated within the territory of one or more of the DR-CAFTA parties was sufficient to validate the claim.

The Customs and Border Protection (CBP) Regulations applicable to the DR-CAFTA are contained in 19 CFR § 10.581 to § 10.625. Section 10.616 specifically addresses “Verification and justification of claim for preferential tariff treatment.” With regard to verification of a claim by a port, the regulation references different methods by which verification may be conducted, including written requests for information. In the case of both entries at issue, that is what the port did; it issued CBP Form 28s requesting specific information. The DR-CAFTA claims were denied because the port felt the documentation submitted in response was deficient to support the claims.

When the importer filed protests against the port’s liquidation of the entries without benefit of the DR-CAFTA claims, the importer submitted additional information to support the claims for preferential tariff treatment. The port reviewed the submitted documentation and concluded that the responses to questions and the documentation provided were insufficient to support the claims.

In reviewing documents submitted to support a claim for preferential tariff treatment under a Free Trade Agreement or other tariff preferential program, we consider the guidance issued to CBP field personnel and the importing community by CBP Headquarter offices in the form of memorandum and Textile Book Transmittals (TBTs). This guidance includes the April 26, 2006, memorandum regarding “Amendments to the U.S. – Dominican Republic – Central America Free Trade Agreement Implementation Instructions,” issued by the Executive Director, Trade Enforcement and Facilitation, Office of Field Operations; TBT-07-019, “Documents Used to Verify Free Trade Agreement and Legislated Trade Program Claims for Textiles and Wearing Apparel,” issued by the Executive Director, Trade Policy and Programs, Office of International Trade on October 10, 2007; and TBT-11-004, “Additional Documents Used to Verify Free Trade Agreement and Legislated Program Claims for Textiles and Wearing Apparel,” issued by the Executive Director, Trade Policy and Programs, Office of International Trade on March 31, 2011. This guidance addresses, among other things, the information needed to establish a claim.

With regard to the reasons given for denying the protests and the specific documents cited by the port as deficient, our comments are set forth below.

Protest 5201-11-100266

The port objected to the affidavit from a yarn supplier as containing ambiguous language, i.e., “which were or will be sold.” The description on the affidavit made reference to both “greige thread yarn” and to “greige (unfinished) yarn.”

TBT-07-019, “Documents Used to Verify Free Trade Agreement and Legislated Trade Program Claims for Textiles and Wearing Apparel,” clearly indicates that blanket certificates of origin are acceptable. Furthermore, in the April 26, 2006, memorandum regarding “Amendments to the U.S. – Dominican Republic – Central America Free Trade Agreement Implementation Instructions,” the Executive Director, Trade Policy and Programs, Office of International Trade addressed “Certification or Other Information Requirements.” The information therein addresses certification of an imported good. Your office has questioned a material used to produce the imported good. We believe the guidance provided applies both to materials and goods. The memorandum states:

If the certification serves as the basis for the claim, it does not need to be in a prescribed format, may be submitted electronically and may cover a single shipment or multiple shipments of identical goods not to exceed the time period of 12 months. The certification must not only include the reason the good qualifies as originating, but must contain the required data elements pertaining to the importation of the good, as outlined in Attachment A. . . . * * * If the basis for the claim is not a certification but rather is supported by other information, that information must also include the required data elements outlined in Attachment A, but does not need to include the certifying statement or the blanket period. However, the information must sufficiently support the claim for preference.  Attachment A to the memorandum lists the required data elements. These elements are: the names and addresses of the importer; exporter and producer (including telephone and email); a description of the good; the Harmonized Tariff Schedule of the United States (HTSUS) classification number (to six or more digits); the applicable preference criterion; the commercial invoice number if the transaction involves a single shipment; the blanket period if multiple shipments of identical goods are involved; and a signature by someone authorized to legally bind the company and with access to the underlying records. The signature block should include not only the signature, but the company name, individual’s title, telephone, fax and email.

The submitted affidavit contains the name and address of the producer of the yarn in the United States (U.S.) and the name of the finisher in the DR-CAFTA party who will dye and finish the yarn effectuating the classification change from yarn to sewing thread. The document also contains a description of the goods sold to the finisher along with the HTSUS classification numbers, and an explanation that the yarn was wholly formed in the United States. The document covers a blanket period of one year and is signed by the Director of Logistics of the company. The address, phone, fax and email are provided on the document. The document meets all of the required elements of Attachment A.

Another affidavit completed by the finisher in the DR-CAFTA party was submitted and contains the name and address of the producers i.e., it contains the name of the yarn producer in the U.S. and the finisher in the DR-CAFTA party who dyes and finishes the yarn into sewing thread. The document also contains a description of the good with its HTSUS classification number, and an explanation that the “sewing thread” was produced in the U.S. and finished in the DR-CAFTA party. The document covers a blanket period of one year and is signed by the Country Manager of the DR-CAFTA party plant. The address, phone, fax and email are provided at the bottom of the document. The document meets the requirements of Attachment A when considered in the context of material inputs.

As to the description on the yarn producer’s affidavit referencing both “greige thread yarn” and to “greige (unfinished) yarn,” we see no cause for concern or confusion. The producer produced yarn that would become sewing thread, but the sewing thread cannot be considered as such until it is finished. As the yarn had not been dyed and finished, it was considered to be in a greige state. The yarn producer’s affidavit and the DR-CAFTA party finisher’s affidavit were sufficient in conveying the necessary information as to the processing of the sewing thread without confusion.

As to the “were or will be sold” language of the affidavit, the port is correct that it is ambiguous. However, no request was made for purchase orders or invoices, only for affidavits. While the CBP Form 28 and 29s issued to the protestant indicated that a date of sale should be on the affidavit, the blanket affidavits provide the time frame during which the sale occurred and CBP has accepted blanket certificates as evidenced by the instructions in TBT-07-019 and the CBP Regulations for various trade programs. In the future, we suggest that purchase orders and invoices be requested to support that an actual sale occurred relevant to the entry at issue.

The port believes the affidavit from the DR-CAFTA party yarn finisher is invalid. The port stated”[t]he ambiguous verbiage on the affidavit does not reflect that a sale actually occurred.” The ambiguous verbiage the port objects to is the blanket period specified in the affidavit. Our response to this issue above applies equally here. The port raised the same objection to several of the submitted affidavits. The importer should be provided the opportunity to submit purchase orders and invoices to substantiate the sale relevant to the entry at issue if the port believes such documentation is necessary to support the claim. TBT-07-019, dated October 10, 2007, does indicate with regard to affidavits that:

If the importer purchased the yarn or fabric, he should provide a commercial invoice for the material. If the fabric is a U.S. product, the importer should provide the bill of lading showing its movement from the United States to the beneficiary country.

If neither of the two instances mentioned in the cited TBT arise, and the port only requests affidavits, the importer will not necessarily recognize the need for submitting purchase orders and invoices unless the port so requests.

With regard to an affidavit from another yarn producer, the affidavit was rejected because it refers to yarn and not thread. Similar to the situation previously discussed - the yarn is described as 100% polyester textured yarn and its HTSUS number is provided; the plant where it was produced and its address are identified; the affidavit was signed by the Customs Compliance Specialist with the company; it was dated; and telephone and fax numbers were provided. The document also indicates that the yarn was wholly formed in the United States of U.S. originating fibers and/or other materials. Another affidavit from the DR-CAFTA party yarn finisher describes 100 percent polyester textured filament yarn produced at the factory identified in the yarn producer’s affidavit. Reviewing the two affidavits together, we disagree with the port’s objection to the use of the terms “yarn” and “thread.” As for the difference in the signature on the affidavit from that on file with the port, we recognize that individuals may vary their signature somewhat depending on a number of factors. Further, the port has informed this office that the yarn producer has submitted sample signatures, handwritten and electronic, for the person authorized to sign their affidavits. The differences noted by the port are apparently the differences seen between the electronic signature and the

handwritten signature. As the differences have been explained, the port has withdrawn the objection based on the signature.

The port’s objection to affidavits submitted for styles 8776, 8770, and 8758, by a yarn producer for failure to provide a date of sale was an error by the port. Revised affidavits reflecting the dates of sale were submitted with the protest. The port also cited failure to provide copies of the referenced invoices and bill of lading, but these documents were not requested. The port only requested affidavits; therefore, protestant’s failure to supply referenced invoices and bills of lading should not result in denial of the preference claim.

The port raised objections to the affidavits submitted for styles 8078, 8077, 8061 and 8060, by the fabric manufacturer. The objections included how the fiber content was conveyed and that the producer did not explain “that ‘various’ yarns were combined to produce 60% cotton/40% polyester fabric.” The port also cited that the affidavits did not provide the name of the purchasers or the dates of sale.

As to the fiber content of the fabric, the manufacturer identified with specificity the type of yarns in the warp and filling and the fiber content of each yarn. If the port questioned how the yarns, with their particular fiber content and construction, yielded a 60% cotton/40% polyester fabric, it should have sought advice from either the National Import Specialist for woven fabrics, the Office of Laboratory Services, or simply asked the importer. We find no deficiency in the manner in which the fabric and its construction were set forth on the certificate of origin submitted by the manufacturer. In addition, we find no issue with the yarn manufacturers’ affidavits.

As to the port’s issue regarding the failure to name the purchasers or have dates of sale, our review shows that the fabric manufacturer’s certificates of origin do contain a block wherein a buyer’s name and address is displayed. Additionally, the manufacturer’s affidavit for yarn produced by the fabric manufacturer clearly indicates the yarn is to be used by the manufacturer in creating a fabric. The other yarn manufacturer’s affidavit clearly indicates the party to whom the yarn was sold. The certificate and affidavits are blanket documents specifying various periods of time during which sales of the manufactured goods occurred.

As you are aware, the purpose of the various TBTs on documents used to verify preference claims is to provide guidance to both the ports and the importing community as to what information is required on affidavits or other documentation submitted to support a preference claim. The date of sale is not an element required by the April 26, 2006, memorandum regarding “Amendments to the U.S. – Dominican Republic – Central America Free Trade Agreement Implementation Instructions,” TBT-07-019, “Documents Used to Verify Free Trade Agreement and Legislated Trade Program Claims for Textiles and Wearing Apparel,” or TBT-11-004 “Additional Documents Used to Verify Free Trade Agreement and Legislated Program Claims for Textiles and Wearing Apparel.” A port may always request invoices and purchase orders as evidence of a sale, but should not reject an affidavit, declaration or other supporting document containing the elements described in TBT-07-019. With regard to styles 6256, 6249 and 6240, the port objected to ambiguous verbiage “sold or to be sold” in various affidavits. We have addressed this issue already herein. The port also cited two purchase orders for fabric sold to the importer as invalid because one was from a sale in 2008 and the other for a sale in 2009. In addition, the port objected to differences in the stated fiber content on the invoice and DR-CAFTA certificate which did not agree with the fiber content set forth on the specification sheet for these styles. Upon review, the port no longer takes issue with these purchase orders or perceived differences in the stated fiber content in the documents. Finally, the port noted the failure of the importer to submit an affidavit of origin from the producer of the waistband fabric. While counsel claims that the port did not request this affidavit, a request for affidavits from the producers of fabric used in the manufacture of goods would include narrow fabrics which may be used in the waistband. The importer erred in not submitting this earlier, but did submit a copy to this office in response to our request. Having reviewed the documents, we have no issues with the support submitted to substantiate preferential tariff treatment for these styles.

The port took issue with style 6254 because the specification sheet for the style indicated that the fiber content was 60% cotton/40% polyester and the DR-CAFTA certificate and fabric affidavits submitted for the style indicated that the fiber content was 50% cotton/50% polyester. We note that in a related protest involving the same style a revised specification sheet for this style was submitted. The revised specification sheet clarified that the fiber content of the fabric for certain colors was either 60%/40% or 50%/50% cotton/polyester and for two colors, it was only 50%/50% cotton/polyester. Although the specification sheet indicates a different fiber content for the garment than the fabric affidavits and the DR-CAFTA certificate, we find the difference has been adequately explained.

For styles 6214 and 6204, the port stated the period of sale was not shown and a bill of lading had not been provided on one of the yarn affidavits. As already noted, the port did not request copies of bills of lading. In addition, we found blanket periods of sale on the fabric and yarn affidavits and specific dates of sale on the yarn affidavits. As the period of sale issue has been addressed and the bill of lading was not requested, we see no reason to reject the DR-CAFTA claim for styles 6214 and 6204.

Protest 5201-11-100309

With regard to the first three issues cited by the port for denying the DR-CAFTA preferential treatment for the goods in the entry at issue, we addressed these points in our discussion of protest 5201-11-100266 above. In addition, the port’s objections to documentation submitted for styles 9472 are addressed above in the discussion of the documentation submitted for styles 8078, 8077, 8061 and 8060. In addition, the port’s objections to documentation submitted for styles 8776 and 8758 are dealt with in the discussion above of the documentation submitted for those styles in protest 5201-11-100266.

In this protest, as in protest 5201-11-100266, the port rejected affidavits for ambiguous verbiage, i.e., “sold (or to be sold),” or similar language. We addressed this issue above, along with the failure of the protestant to supply referenced invoices and bills of lading when the port did not request them. For the reasons already stated here, neither the use of the ambiguous language nor failure to present documents not requested by the port should result in denial of the preference claim.

An affidavit was presented for styles 0982, 9443, 8039, 8006, 8002 and 8096 from the same manufacturer with ambiguous language attesting that fabric and yarn “was made by or for” the manufacturer. The manufacturer’s name and address was provided after the statement. The top of the affidavit states that the fabric was manufactured by the named manufacturer. We understand that the manufacturer has changed its affidavits to eliminate the ambiguous language.

As to more specific objections, with regard to style 6295, the port objected to the affidavit of the yarn producer stating it did not agree with the fiber content on the DR-CAFTA Certificate of Origin. In addition, the port stated the affidavit did not provide the dates of sale. However, we found the Certificate of Origin indicated this style was 50% cotton/50% polyester fiber. The yarn producer’s affidavit indicates two yarns were produced and each yarn consisted of 50% cotton, 49% polyester, and 1% black polyester. Furthermore, a date of sale is set forth at the bottom of the affidavit.

As for style 9472, the objections of the port included the manner in which the fiber content was conveyed and that the producer did not explain “that ‘various’ yarns were combined to produce 60% cotton/40% polyester fabric.” The port also cited that the affidavits did not provide the name of the purchasers or the dates of sale.

As to the fiber content of the fabric, the manufacturer identified with specificity the type of yarns in the warp and filling and the fiber content of each yarn. As mentioned previously, if the port questioned how the yarns, with their particular fiber content and construction, yielded a 60% cotton/40% polyester fabric, it should have sought advice from either the National Import Specialist for woven fabrics, the Office of Laboratory Services, or simply asked the importer. We find no deficiency in the manner in which the fabric and its construction were set forth on the certificate of origin submitted by the manufacturer. In addition, we find no issue with the yarn manufacturers’ affidavits.

As to the port’s issue regarding the failure to name the purchasers or have dates of sale, our review shows that the fabric manufacturer’s certificates of origin do contain a block wherein a buyer’s name and address is displayed. Additionally, the manufacturer’s affidavit for yarn produced by the fabric manufacturer clearly indicates the yarn is to be used by the manufacturer in creating a fabric. The other yarn manufacturer’s affidavit clearly indicates the party to whom the yarn was sold. The certificate and affidavits are for blanket documents specifying various periods of time during which sales of the manufactured goods occurred.

With regard to style 9461, the port stated the fiber content on the yarn affidavits did not agree with the fiber content for style 9461. This is true, but the yarns, when combined to produce the fabric used to make style 9461 create a fabric of 60% cotton/40 % polyester. The fiber content of the individual yarns will not necessarily match the combined fiber content of the fabric created by the weaving or knitting of those yarns. For example, a warp yarn of 65% polyester/35% cotton and a filling yarn of 25% polyester/75% cotton may result in a fabric of 60% cotton/40% cotton depending on the construction of the yarns, the fiber blends of the yarns and the number of warp and filling yarns used in the production of the fabric. As to the second fabric producer, who also produced a yarn, our comments regarding the fabric manufacturer for style 9472 apply here. These affidavits should have not been rejected.

Our comments regarding style 9461 affidavits and the fiber content as stated on the affidavits applies to the port’s comments regarding affidavits for styles 8073, 8061, 8069, 8066, 8063, 8076 and 9466.

Styles 6240 and 6249 were addressed above in the discussion of protest 5201-11-100266. With regard to styles 9431 and 8091 and the port’s objections to the fabric and yarn affidavits fiber content, it is not clear why the port objected because the yarns and fabric are of the same fiber content as the garments for each style, that is, 65% polyester/35% cotton.

As for style 7068, our comments regarding style 9461 and fiber content on affidavits applies to this style too. In addition, with regard to the different addresses provided for the same yarn producer on different affidavits, we recognize that companies may have more than one location. Before rejecting the affidavits for this reason, it would be reasonable for the port to check on the reason for the different addresses. The importer failed to provide the port with an affidavit for the elastic waistband material, but did submit such affidavit to this office. The affidavit affirms that the waistband material was formed in the U.S. of U.S. origin materials.

With regard to styles 6257, 8076, and 9720, the port noted that the fiber content shown on the fabric and yarn affidavits for all styles did not match the fiber content for these garments shown on the applicable DR-CAFTA certificates and commercial invoices. With regard to style 8076, the style specification and the fabric affidavit (which is a blanket affidavit with a buyer’s name and address on it) indicate the fabric is 60% cotton/40% polyester. The yarn affidavits are for blends of cotton and polyester which when combined form the 60/40 cotton/polyester fabric. The DR-CAFTA certificate indicates the garment consists of 50% cotton/50% polyester, as does the invoice. For styles 6257 and 9720, the fabric and yarn affidavits also support a claim that the fabric used for the garments was a 60/40 cotton/polyester fabric. However, the DR-CAFTA certificates and the invoices reflect a 99/1 cotton/polyester fiber cotton and a 100% cotton fiber cotton, respectively.

Counsel submits that the relevant commercial invoices contained typographical errors in the case of each garment. Either the garment was made with different fiber blends for different colors and the wrong blend was reflected on the invoice or it was an inadvertent error. As the invoices were the basis for the DR-CAFTA certificates, any errors on the invoices appeared on the certificates. Counsel submitted corrected invoices and DR-CAFTA certificates and now states the style sheets, cut sheets and fabric and yarn affidavits presented to the port reflect the correct fiber content.

We accept the explanation provided by counsel, especially in light of the information reflected on the sketch sheets for style 6257 which clearly indicates differences in fiber content for different colored garments of that style. Revised invoices and DR-CAFTA certificates were submitted reflecting the correct fiber content information for styles 6257, 8076, and 9720.

Styles 9531 and 9251 were claimed to qualify for DR-CAFTA preferential tariff treatment under subheading 9820.05.01, HTSUS, which is the provision allowing for garments made of certain designated fabrics of yarns not considered available in commercial quantities, i.e., in short supply, to qualify under the DR-CAFTA. The specific fabric at issue is provided for at U.S. Note 20(a)(44), Subchapter XXII, Chapter 98, HTSUS, which describes the fabric as:

Man-made fiber fabrics, not of square construction, containing more than 70 warp ends and filling picks per cm², of average yarn number exceeding 70 metric, classified in subheading 5513.11 or 5513.21[.]

The port stated that no documentation was provided to substantiate that the fabric used in making the styles 9531 and 9251 was a fabric named in Annex 3.25 of the Agreement.

In the protest submission, a fabric specification sheet was provided from the fabric manufacturer. This office contacted the National Import Specialist (NIS) for woven fabrics who reviewed the specification sheet. The NIS concluded that the specification sheet described a fabric that met the description of a fabric described by Note 20(a)(44), with the exception of the average yarn number which she found to be 70.

Counsel has argued that the fabric specification sheet provided was for the fabric in the greige state. Counsel correctly notes that CBP classifies goods based upon the condition as imported and therefore, it is the finished fabric state which is relevant. We received a customer specification sheet from counsel which shows, among other things, the number of threads per inch the fabric was to have. The producer expects finishing processes to cause the thread count of the finished fabric to differ from that of the fabric in the greige state. Based on the information in the customer specification sheet, counsel argues that the average yarn number of the finished fabric is greater than 70.

The information provided by counsel is helpful, but the more persuasive factor is that the same fabric was used in garments in another entry by the protestant in which samples were submitted and the fabric of the garments was tested by the CBP Office of Laboratory Services. The fabric specification sheet for these garments was identical to the fabric specification sheet submitted for styles 9531 and 9251. The manufacturer of the fabric was also the same. One of the tested garments was not only of identically described fabric, but was also the same color as the styles at issue. The port provided us with a copy of the laboratory test that confirmed the fabric met the description of the short supply fabric described in U.S. Note 20(a)(44). Based on the information from the port and that provided by counsel, we are persuaded that styles 9531 and 9251 were constructed of short supply fabric of U.S. Note 20(a)(44). DR-CAFTA contains requirements regarding the use of narrow fabrics of subheading 5806.20, HTSUS, and heading 6002, HTSUS. In the DR-CAFTA tariff shift rules for Chapter 61, Chapter rule 3 of the 2010 HTSUS provides:

Notwithstanding chapter rule 2 to this chapter, a good of this chapter, other than a good of subheading 6102.20, tariff item 6102.90.90 (for goods subject to cotton restraints), 6104.12.00 (for jackets imported as parts of suits), 6104.13.20, 6104.19.15, 6104.19.80 (for jackets imported as parts of suits and subject to cotton restraints), 6104.19.80 (for goods subject to man-made fiber restraints), 6104.22.00 (for garments described in heading 6102 or jackets and blazers described in heading 6104), 6104.29.20 (for garments described in heading 6102 or jackets and blazers described in heading 6104, the foregoing subject to cotton restraints), subheading 6104.32, tariff item 6104.39.20 (for goods subject to cotton restraints), 6112.11.00 (for women’s or girls’ garments described in headings 6101 or 6102), 6113.00.90 (for coats and jackets of cotton, for women or girls) or 6117.90.90 (for coats and jackets of cotton), containing fabrics of subheading 5806.20 or heading 6002 shall be considered originating only if such fabrics are both formed from yarn and finished in the territory of one or more of the parties to the Agreement.

Several styles, i.e., styles 8766, 8613, 8340, 8320, 8317, 8100 and 8370, feature collars and cuffs. These styles are not classified in any of the provisions excepted from application of Chapter rule 3. Therefore, notwithstanding Chapter rule 2 which limits the application of the tariff shift rules to the component that determines the classification of the good, if a garment contains a narrow fabric of either subheading 5806.20, HTSUS, or heading 6002, HTSUS, and the garment is not excepted from the rule, the port requires information on the production of that fabric to determine whether the garment containing it qualifies for preferential treatment under the DR-CAFTA. Fabric for collars and cuffs conceivably may fall within the narrow fabric rule. Thus it was proper for the port to request the information. Importers should fully respond to requests for fabric affidavits or seek clarification from the port if unsure of the scope of the request.

No fabric affidavits or information specific to the collars and cuffs were presented to the port for the styles at issue. Counsel has taken issue with the relevancy of affidavits for these components or the fabric from which they were made. Counsel maintains affidavits for the fabric from which these components are made are not relevant. However, we agree with the port that information regarding these components should have been presented to the port when it requested fabric affidavits; even if it was merely to tell the port which styles featured knit-to-shape collars. It is for the port to determine, after review of the requested information, whether it affects the eligibility of the garments at issue.

At our request, counsel has provided this office with information regarding the collars and cuffs of the styles at issue. Styles 8766, 8613, 8340, 8320, 8317 and 8370 had knit-to-shape collars. Therefore, the collars were components formed from yarn and not fabric. Style 8100 had a collar constructed from 27-inch tubular knit fabric with elastomeric yarn which was cut and sewn to form the turtle-neck collar. The cuffs for all styles with cuffs were formed from 27-inch tubular knit fabric (for certain styles with elastomeric yarn, for others without elastomeric yarn) which was cut and sewn to form the cuffs. The information provided showed the dyeing orders for the fabrics and collars. After reviewing the submitted documentation, we agree that Chapter rule 3 of Chapter 61 of the tariff shift rules for DR-CAFTA is not applicable to the styles at issue. With regard to whether an affidavit of origin must be on letterhead which was raised by counsel, there is no requirement for the use of letterhead paper. In addition, identifying two or more separately and clearly described fabrics or yarns on an affidavit of origin is permissible, but the importer should clearly indicate which yarns or fabrics are relevant to the goods in the entry to avoid confusion. A narrative to the port explaining the documents submitted would have been helpful. Finally, when affidavits contain obvious typographical errors, we agree with counsel that the port should allow the importer the opportunity to correct them.

Many of the issues that arose in the document review by the port could have been avoided had the importer exercised greater care in the preparation and review of documents. Particularly in cases where different fiber blends were used to produce styles, the importer’s review of the invoices, DR-CAFTA Certificates of Origin, garment specification sheets, and fabric and yarn affidavits to ensure that each reflected the fiber blend of the style in the specific entry, prior to submission to CBP, could have saved the importer and the agency time and effort in reviewing the subject entry. It is incumbent for importers to act with care in the creation and maintenance of their records to support preferential tariff claims. Furthermore, when a port requests fabric affidavits from an importer, affidavits for any fabric used in the production of the good should be submitted. The port, and not the importer, will decide the relevancy of a fabric to determining the eligibility of a good under a preference program. Not submitting a fabric affidavit because the importer believes the fabric does not affect the eligibility of its good risks a denial of preferential treatment by CBP.

HOLDING:

The protests should be allowed. The documentation submitted to the port was not sufficient to support the claim for preferential tariff treatment under the DR-CAFTA for all of the styles at issue. However, the importer has provided this office with the missing information to show that the goods are indeed eligible under the DR-CAFTA.

Ports should follow the TBT instructions with regard to the information to be contained in affidavits or other declarations submitted to support a claim for preferential tariff treatment under a FTA. However, ports may request additional information separate and apart from affidavits, such as purchase orders, commercial invoices, proof of payment, shipping documents, etc.

In accordance with the Protest/Petition Processing Handbook (CIS HB 3500-08A, December 2007, pp. 24 and 26), you are to mail this decision, together with the CBP Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with this decision must be accomplished prior to mailing of the decision. Sixty days from the date of the decision Regulations and Rulings of the Office of International Trade will make the decision available to CBP personnel, and to the public on the CBP Home Page on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.

Sincerely,

Myles B. Harmon, Director
Commercial and Trade Facilitation Division