OT:RR:CTF:VS H241889 KSG
Port Director
U.S. Customs & Border Protection
1 East Bay Street
Savannah, GA 31401
RE: Protest No. 1703-12-100735; U.S.-Peru TPA; sufficiency of documentation
Dear Director:
This is in response to an Application for Further Review of Protest No. 1703-12-100735 filed by the protestant, Drexel Chemical Company, regarding the eligibility of imported copper hydroxide for preferential tariff treatment under the U.S.- Peru Trade Promotion Agreement (“PTPA”).
FACTS:
On February 1, 2012, Drexel Chemical Company entered 40 bags of copper hydroxide which it classified under subheading 2825.50.30, of the Harmonized Tariff Schedule of the United States (“HTSUS”) claiming preferential tariff treatment under the PTPA.
CBP initiated a verification of this claim and issued a Request for Information (CBP Form 28) dated April 3, 2012. CBP issued a proposed rate advance dated May 11, 2012, stating that no supporting documentation had been submitted for the claim under the PTPA and permitting another 20 days to submit additional information. Documentation was submitted on June 4, 2012, in response to the proposed rate advance (CBP Form 29). On June 8, 2012, CBP issued a rate advance stating that the documentation submitted was insufficient as no production records were submitted.
Drexel submitted the following documentation:
a purchase order from Drexel to Saldeco, a chemical manufacturer in Lima, Peru dated January 6, 2012, for 40 bags of copper hydroxide technical for $231,720.96;
a proforma invoice from Saldeco to Drexel for 40 bags of copper hydroxide technical stating the country of origin was Peru;
an invoice (No. 005017) from Saldeco to Drexel dated January 18, 2012, for 40 bags of copper hydroxide technical valued at $231,720.96, with two batch numbers provided (2578, 2579), indicating the country of origin was Peru and loaded at Callao, Peru on the vessel Cape Race;
a packing list dated January 18, 2012, showing shipment of invoice 005017, batch 2578, on the vessel Glasgow Express;
a bill of lading dated January 20, 2012, for 40 bags of copper hydroxide technical showing shipment from Peru to the U.S. on the Glasgow Express;
a Certificate of Origin from Saldeco for 40 bags of copper hydroxide technical grade dated January 18, 2012, referencing the matching purchase order number, the vessel Glasgow Express, invoice number, and stating that the goods were of Peruvian origin. The Certificate of Origin matched the other documents submitted;
a Quarantine Packing Declaration for the Glasgow Express, referencing the invoice number dated January 18, 2012;
a Material Safety Data Sheet Certificate for copper hydroxide technical on Saldeco letterhead dated January 18, 2012;
a Multimodal Dangerous Good Form, dated January 13, 2012, stating 40 bags of copper hydroxide technical were loaded onto the Glasgow Express in Callao, Peru and shipped to the U.S.;
a Certificate of Analysis on Saldeco letterhead dated January 18, 2012, referencing the batch numbers, quantity and specifications for copper hydroxide technical;
a May 23, 2012, letter from Saldeco to Drexel stating that copper sold by Tintaya was used to produce order no. 201450 which was shipped from Callao in the vessel Glasgow Express, listing the bill of lading number, the invoice number, batch numbers, quantity, purchase order, invoice number, manufacturer, and importer;
a May 24, 2012, notarized affidavit on Saldeco letterhead to Drexel, referencing the purchase order number, invoice number, and quantity, certifying that the copper hydroxide technical was produced in Peru, by 100% Peruvian labor, and that the raw material was refined in their plant in Peru;
Drexel Chemical’s statement that the raw materials used were mined in Peru, under a bill of lading showing shipment from a port in Peru;
a raw material certification dated May 22, 2012, from Xstrata Tintaya S.A., the Peruvian mining company, stating that the copper was extracted from their mines in Peruvian territory;
an invoice from Xstrata Tintaya S.A. to Saldeco dated December 20, 2011;
batch sheets from Saldeco dated September 1, 2012, each showing production of 19,056 Kg of copper hydroxide resulting in production of 20 bags each. The batch sheets (“Orden de Produccion”) also show the supervisor and the name of the person who prepared the document.
Drexel states that it has imported copper hydroxide for over seven years from the same manufacturer.
ISSUE:
Whether the imported copper hydroxide was eligible for preferential tariff treatment under the United States- Peru Trade Promotion Agreement.
LAW AND ANALYSIS:
The U.S. and Peru signed the PTPA on April 12, 2006. On December 14, 2007, the PTPA became law and it entered into force on February 1, 2009. The U.S.-Peru TPA Implementation Act (Pub. L. 110-138, 121 Stat. 1455 (19 U.S.C. 3805, note)), implemented the Agreement in General Note 32, of the Harmonized Tariff Schedule of the United States (“HTSUS”). The regulations applicable to the PTPA are contained in 19 CFR 10.901 to 10.934.
GN 32(b), HTSUS, provides that a good imported into the customs territory of the United States is eligible for treatment as an originating good under the terms of this note if—
the good is a good wholly obtained or produced entirely in the territory of Peru, the United States, or both;
the good was produced entirely in the territory of Peru, the United States, or both, and—
(a) each of the nonoriginating materials used in the production of the good undergoes an applicable change in tariff classification specified in subdivision (n) of this note; or
(b) the good otherwise satisfies any applicable regional value content or other requirements specified in subdivision (n) of this note; and the good satisfies all other applicable requirements of this note; or
(iii) the good was produced entirely in the territory of Peru, the United States, or both, exclusively from materials described in subdivision (b)(i) to b(ii) of this note.
The Port initiated a verification of the entry at issue. The Protestant submitted a detailed Certificate of Origin, notarized affidavit, purchase orders, invoices and batch sheets to demonstrate origin of the mined raw material in Peru and production in Peru as well as the other documentation described above. Although the port stated that no production records were presented, we find that the batch records are production records. Based on the detailed Certificate of Origin, production records as demonstrated by the batch sheets, and other documentation submitted, which all reference each other, we are satisfied that the goods were wholly produced in Peru. Accordingly, we find that the goods were eligible for preferential tariff treatment under the PTPA.
The Protest should be granted.
HOLDING:
The Protest in this case should be granted. The copper hydroxide at issue qualifies for preferential tariff treatment under the PTPA, set forth in GN 32, HTSUS.
In accordance with Sections IV and VI of the CBP Protest/Petition Processing Handbook (HB 3500-08A, December 2007, pp. 24 and 26), 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 in accordance with the 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 & Trade Facilitation Division