OT:RR:CTF:VS H217821 CMR
Port Director
U.S. Customs and Border Protection
6601 NW 25th Street
Room 272
Miami, FL 33122
RE: Protest Nos. 5201-12-100001, 5201-12-100002, 5201-12-100004, 5201-12-100005, and 5201-12-100006; Apparel; Peru FTA
Dear Port Director:
On April 23, 2012, this office voided the denials of Protest Nos. 5201-12-100001, 5201-12-100002, 5201-12-100004, 5201-12-100005, and 5201-12-100006 pursuant to 19 U.S.C. § 1515(d). We have reviewed the protests and our decision is set forth below.
FACTS:
The protests at issue involve 5 entries of various apparel items for which preferential tariff treatment claims under the United States – Peru Trade Promotion Agreement Implementation Act (PTPA) were made at the time of entry. On June 7, 2011, your port requested valid certificates of origin, as well as affidavits from the producers of the yarn and fabric used in the manufacture of the imported garments, for each of the entries at issue. The PTPA claims were denied because the importer failed to respond to the port’s request. Notice of the denied claims was sent to the importer via a CBP Form 29, dated July 11, 2011.
Counsel for the importer filed 5 protests, i.e., one for each entry, which were received by CBP on January 4, 2012. The protests were timely filed. The protest submissions included documentation requested by the port in the CBP Form 28.
The port denied the claims for preferential tariff treatment under the PTPA, citing the following as reasons for denial –
For all protests:
Fabric affidavits from [A] state “Yarn or Fabric”; thus these affidavits are invalid;
Yarn affidavits from [B] mention invoices that were not provided;
Affidavits from producer [C] were not provided; and,
Affidavits from the sewing thread producers were not provided.
In addition, the port cited additional reasons for denial for protests 5201-12-100004 (failure to submit an affidavit for style 9724T), 5201-12-100005 (no certificate of origin was submitted for style 2023K, and 5201-12-100006 (no certificates of origin were submitted for styles 027KC, 2023K, 2040K and 2044K; and, an invoice associated with [D] affidavit was not submitted).
ISSUE:
Is the wearing apparel at issue in the protested entries entitled to preferential tariff treatment under the PTPA?
LAW AND ANALYSIS:
The United States-Peru Trade Promotion Agreement was signed on April 12, 2006. The United States-Peru Trade Promotion Agreement Implementation Act (Pub. L. 110-138, 121 Stat. 1455 (19 U.S.C. 3805 note)), as amended by § 1634 of the Pension Protection Act of 2006 (Pub. L. 109-280, 120 Stat. 1167), implemented the Agreement in General Note 32, of the Harmonized Tariff Schedule of the United States (“HTSUS”).
The Customs and Border Protection (CBP) Regulations applicable to the PTPA are contained in 19 CFR § 10.901 to § 10.934. Section 10.926 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 this case, that is what the port did; it issued a CBP Form 28 requesting specific information.
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 February 10, 2009, memorandum entitled “U.S.-Peru Trade Promotion Implementation Instructions,” issued by the Executive Director, Trade Policy and Programs, Office of International Trade; 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.
With regard to the reasons given for denying the protest and the specific documents cited by the port, and taking into consideration the guidance contained in the February 10, 2009, memorandum and TBTs cited above, we have the following comments.
The use of the terms “Yarn of Fabric” at the top of fabric affidavits from [A] is of no consequence. Reading the affidavits, the manufacturers of the fabric and yarn are clearly identified, as is the country of manufacturer of each.
Certain invoices were not provided to the port which were mentioned on affidavits from [B] and [D]. The protest submissions clearly state invoices for transactions between [B] and [E] are not available to the fabric manufacturer because the companies consider the invoices to be trade secrets and they refused to provide them. However, the protests indicate that the companies, by signing the submitted affidavits, promise to make the invoices available to Customs upon request. The port did not request these invoices after the protests were filed. As for the missing invoice referenced in the [D] affidavit, counsel has provided this invoice, indicating the failure to submit it earlier with the numerous other invoices was merely an oversight.
As to the failure to submit affidavits from producer [C], counsel has explained that CBP requested affidavits from the yarn and fabric producers and [C] produced T-shirts by cutting and sewing. As the company did not produce yarn or fabric, affidavits were not submitted.
While a request for affidavits from yarn and fabric producers should be sufficient as sewing thread is a type of yarn, an importer may not understand that such a request includes sewing thread. An affidavit from the sewing thread producer was provided to this office. Copies of the same affidavit were submitted for each protest
The missing affidavit for style 9724T cited in the denial of protest 5201-12-100004 was actually submitted with the protest. However, we understand why the port did not realize the fabric affidavit was submitted for that style, as no information connecting the fabric affidavit to that particular style appeared on the document.
The port cited failure to submit a certificate of origin for style 2023K as one reason for denial of Protest No. 5201-12-100005. Counsel has provided this office with a corrected certificate of origin which includes a description of style 2023K. Counsel points out that the difference between style 2023K and other styles identified in the relevant invoice is the use of the terms “sweater” and “cardigan.” While the tariff classification of the garments is the same, as is the fiber content, the description of style 2023K differed in that it was described as a cardigan. Counsel points out that the same deficiency appeared on the certificate of origin for invoice #001-00800 and therefore, a corrected certificate of origin has been submitted for the garments described in that invoice.
Finally, with regard to Protest No. 5201-12-100006, the port cited failure to submit certificates of origin for styles 027KC, 2023K, 2040K and 2044K. As with style 2023K of Protest No. 5201-12-100005, the problem is a difference in description of the garments from others covered by the same certificate of origin. The styles have the same fiber content and tariff classification, the descriptions differ slightly, i.e. sweaters, sweater turtle neck and cardigan. A corrected certificate of origin has been submitted to this office. As for styles 2040K and 2044K, again it appears that the description of the garments differ from other garments with the same fiber content and tariff classification. The difference is the use of the terms “sweater” and “cardigan.” Counsel has submitted a corrected certificate of origin.
Having reviewed the protest submission, the deficiencies found by the port and the documentation submitted by counsel to address the concerns of the port, the protests at issue should be approved.
HOLDING:
Protest Nos. 5201-12-100001, 5201-12-100002, 5201-12-100004, 5201-12-100005, and 5201-12-100006 should be allowed.
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