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HQ 967318




February 11, 2005

CLA-2 RR:CR:TE 967318 TMF

CATEGORY: CLASSIFICATION

TARIFF NO.: 6102.20.0010

Area Director, JFK International Airport Area c/o Chief, Liquidation and Protest Branch Building 77
John F. Kennedy International Airport
Jamaica, NY 11430

RE: Application for Further Review of Protest #4701-04-100185

Dear Sir or Madame:

This is in reply to your correspondence forwarding Application for Further Review of Protest (AFR) 4701-04-100185, filed by the law firm of Sharretts, Paley, Carter & Blauvelt, P.C. on behalf of their client, Morsly, Inc.

FACTS:

The protest and application for Further Review (hereinafter “AFR”), which was timely filed on March 5, 2004, is against Customs and Border Protection’s (CBP) denial of preferential treatment under the African Growth and Opportunity Act (hereinafter referred to as “AGOA”) of entries containing certain ladies’ cardigans. The merchandise was liquidated as dutiable at 16.1 percent ad valorem based on classification within subheading 6102.20.0010, HTSUSA.

The merchandise was entered between August 10, 2002 to October 7, 2002. All entries subject to this protest were liquidated on December 12, 2003. In a Request for Information (CF 28) dated August 14, 2003, which stated “a timely response is required,” CBP requested various documents from the protestant, including, but not limited to: 1) production records for styles BB2F200-72 (including cutting, sewing, ironing, packing and finishing; time cards of the employees who performed the actual processing of the garments; 2) invoices,
proofs of payment, bills of lading, inland freight bills, and customs clearance records for all of the raw materials incorporated into the garments; 3) a complete unit cost breakdown showing the cost and quantity or yardage of each component of the final fob price for style BB2F200-72; 4) a purchase order, seller’s confirmation, and proof of payment covering the transaction between the garment producer and Morsly, Inc.; 5) inland freight bills, airway bills, and customs export documents showing the goods actually exported.

In correspondence dated September 18, 2003, the protestant indicated that full information could not be provided as it was not in their possession nor accessible. CBP issued a Notice of Action dated October 14, 2003, noting that if a complete response to the CF 28 could not be made, the AGOA claim would have to be denied. This Notice of Action also referenced all unliquidated entries.

On November 18, 2003, the Swaziland Textile Exporter Association issued a letter to the protestant’s counsel that stated that the protestant’s garment producer was no longer in business.

As the protestant failed to submit the requested documents to establish duty-free treatment under the AGOA, the merchandise was liquidated fully dutiable and denied preferential treatment under the AGOA.

ISSUE:

Whether the protestant provided sufficient documentation to CBP to enable verification of their claim for preferential treatment under the AGOA?

LAW AND ANALYSIS:

The protest with AFR was timely filed under the statutory and regulatory provisions for protests. See 19 U.S.C. §1514 and 19 C.F.R. Part 174. We also note that the decision to deny AGOA preference is protestable under the Customs protest statute. See 19 U.S.C. §1514(a)(2).

      The Customs regulations governing the verification and justification of claim for preferential treatment can be found in 19 C.F.R. §10.217(a), which reads, in relevant part, as follows:

A claim for preferential treatment made under §10.215, including any statements or other information contained on a Certificate of Origin submitted to Customs under §10.216, will be subject to whatever verification the port director deems necessary. In the event that the port director for any reason is prevented from verifying the claim, the port director may deny the claim for preferential treatment

In the instant case, the Request for Information dated August 14, 2004 stated that a timely response was necessary for consideration by CBP. However, the requested information was not provided to CBP.

As the protestant requested preferential treatment under the AGOA, we again refer to §10.217(a), supra, which specifically states that a verification of a claim for preferential treatment may involve, but need not be limited to, a review of:

All records required to be made, kept, and made available to Customs by the importer or any other person under part 163 of this chapter; Documentation and other information regarding the country of origin of an article and its constituent materials, including, but not limited to production records, information related to the place of production, the number and identification of the types of machinery used in production, and the number of workers employed in production; and Evidence to document the use of U.S. materials in the production of the article in question, such as purchase orders, invoices, bills of lading and other shipping documents, and customs import and clearance documents.

We have completed a thorough review of the protestant’s submitted evidence, which includes, but is not limited to, a random sampling inspection certificate and oral evidence presented during a recent conference with members of my staff of repetitive, on-site quality control inspections.

Based on the totality of the evidence, it is our decision that the instant protest is with merit. The protestant has provided sufficient additional information to establish that the protestant’s claim for AGOA preference as provided by §10.217 of the Customs Regulations should be allowed.

HOLDING:

The protestant has provided sufficient evidence to establish that the garments under protest are eligible for AGOA preferential treatment as provided by §10.217 of the Customs Regulations. Accordingly, the protest is ALLOWED.

In accordance with the Protest/Petition Processing Handbook (CIS HB, January 2002, pp. 18 and 21), you are to mail this decision, together with the Customs Form 19, to the counsel for 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 the Office of Regulations and Rulings 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 Harmon, Director
Commercial Rulings Division

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