VAL-2 OT:RR:CTF:VS H036556 CMR
Port Director
U.S. Customs and Border Protection
Protest and Control
1100 Raymond Boulevard
Suite 402
Newark, New Jersey 07102
RE: Decision on Application for Further Review of Protest No. 4601-07-102498; Protest against
denial of preferential treatment; General Note 3(a)(v) of the HTSUS; cotton bed linens
Dear Port Director:
This decision is in response to Protest No. 4601-07-102498 with Application for Further Review (AFR) timely filed on December 3, 2007. You denied the AFR and protest on February 29, 2008. Counsel for the protestant filed a timely request for the set aside of the denial of the AFR pursuant to 1515(c) and 1515(d). After review of the request, this office set aside the denial of the AFR and protest pursuant to 1515(c).
FACTS:
The protest was filed by Rode & Qualey on behalf of their client, Home City, Inc. (“Home City”), against your decision to deny preferential tariff treatment to two entries of cotton sheets, pillow cases and duvet covers under General Note 3(a)(v) of the Harmonized Tariff Schedule of the United States (HTSUS) as products of a qualifying industrial zone (QIZ). Counsel for the protestant argues that the merchandise was a product of an Egyptian manufacturer and was produced in the manufacturer’s factory in the Alexandria QIZ. In support of this argument, counsel submitted various documents related to the ordering and delivery of the merchandise between the manufacturer and Home City, proof of payment, certificates of origin issued by the Alexandria Chamber of Commerce, a letter from the manufacturer certifying that the fabric used to produce the bed linens at issue was woven at the manufacturer’s factory in Alexandria, proof of payment by Home City to the manufacturer, and an affidavit from the president of Home City stating, among other things, that he had “seen the yarn spinning, fabric weaving, sewing and packing operations at [the factory].” On January 28, 2008, counsel submitted supplemental information in support of the subject protest. The information, including documents which appear to be production documents, i.e. cutting orders, input to production line, daily production table, yarn production planning, and grey fabric production planning, while identified in English were principally written in Arabic and translations were not included in the submission. On January 29, 2008, counsel submitted a catalogue of the bed and table linens that are part of the 2008 collection of the manufacturer and pertinent pages from the manufacturer’s web site which includes a view of the manufacturer’s production line. “The production line includes spinning, weaving, processing (bleaching, mercerizing, piece dyeing, printing, finishing, etc.) and the confection [of] sewing and embroidery units.” See Letter of January 29, 2008 from protestant’s counsel to the Port of Newark. We note that while this office did receive a copy of the January 29 letter, we did not receive the submitted catalogue, nor were we able to access the manufacturer’s web site.
Counsel made additional submissions on September 16, 2008 and November 24, 2008. These additional submissions were partially translated copies of the previously submitted production documents.
Further review is proper in this case as this protest presents a question not previously considered by this office, i.e., the sufficiency of documentation to support a claim of origin or preferential treatment when such documentation is presented in a language other than English.
ISSUE:
Must documentation submitted to CBP to support a claim of origin or preferential tariff treatment be in English or must a translation into English be provided to CBP?
Is the documentation submitted to support the claim that the merchandise was produced in a QIZ sufficient?
Does the merchandise at issue in this protest qualify for preferential tariff treatment under General Note 3(a)(v)?
LAW AND ANALYSIS:
Pursuant to the authority conferred by section 9 of the U.S.-Israel Free Trade Area Implementation Act of 1985 (19 U.S.C. 2112 note) ("FTA"), the President issued Proclamation No. 6955, dated November 13, 1996 (published in the Federal Register on November 18, 1996, (61 Fed. Reg. 58761)), which modified General Note 3(a), HTSUS, to provide duty-free treatment to articles which are the product of the West Bank, the Gaza Strip, or a QIZ, provided certain requirements are met. Such treatment was effective for products of the West Bank, Gaza Strip or a QIZ, entered or withdrawn from warehouse for consumption on or after November 21, 1996.
On December 29, 2004, notice was published by the Office of the United States Trade Representative in the Federal Register (69 Federal Register 78094), announcing the designation of the Greater Cairo zone, Alexandria zone, and Suez Canal zone as qualifying industrial zones under sections 9(e)(1) and (2) of the United States – Israel Free Trade Area Implementation Act of 1985. The notice states that “[t]he names and locations of the factories comprising these three zones are specified on maps and materials submitted by Egypt and Israel and on file with the Office of the U.S. Trade Representative.” The names of factories within designated zones are available on the Customs and Border Protection (CBP) web site. We note that the named manufacturer is listed as a company operating in the industrial city of El Amria (Borg Al-Arab) in the Alexandria QIZ.
Under GN 3(a)(v), HTSUS, articles which are the product of the West Bank, the Gaza Strip or a QIZ and which are imported directly to the United States from the West Bank, the Gaza Strip, a QIZ or Israel qualify for duty-free treatment, provided the sum of (1) the cost or value of materials produced in the West Bank, the Gaza Strip, QIZ, or Israel, plus (2) the direct costs of processing operations performed in the West Bank, the Gaza Strip, QIZ or Israel, is not less than 35% of the appraised value of such articles when imported into the U.S. The cost or value of materials produced in the U.S. may be applied toward the 35% value content minimum in an amount not to exceed 15% of the imported article’s appraised value. An article is considered to be a "product of" the West Bank, the Gaza Strip, or a QIZ if it is either wholly the growth, product or manufacture of one of those areas or a new or different article of commerce that has been grown, produced or manufactured in one of those areas.
With regard to the merchandise at issue, the protestant claims that it qualifies for preferential tariff treatment as products of a qualifying industrial zone under General Note 3(a)(v) of the HTSUS. The protestant claims that the cotton sheets, pillow cases and duvet covers are produced by a manufacturer located in the Alexandria QIZ who spins Egyptian fiber into yarn, weaves it into fabric, dyes or prints it, and then cuts and sews it into bed linens. Counsel for the protestant has submitted documentation, identified in the FACTS portion of this decision, to support the claim that the merchandise is a product of the Alexandria QIZ.
To determine if the bed linens at issue are products of the Alexandria QIZ, we apply the rules of origin for textiles and apparel set forth in 19 U.S.C. § 3592 which are implemented in the CBP Regulations at 19 C.F.R. § 102.21. Applying 19 C.F.R. § 102.21(c)(1), which provides that the origin of a textile or apparel product is where it was wholly obtained or produced, the bed linens are products of Egypt.
Based on the information submitted, the bed linens at issue would appear to have been produced in the Alexandria QIZ as the fabric for the bed linens was woven in a factory located in the Alexandria QIZ. However, this is the dispute between your port and the protestant. We note, however, that your port accepted Egypt as the country of origin of the bed linens. The issue between the protestant and your port is whether the merchandise was produced in the Alexandria QIZ by the factory claimed by the protestant and meets the requirements of General Note 3(a)(v). The port based its initial denial of the protest, which this office set aside, on the failure by the protestant to submit production documents in English.
This protest is before us because we have not ruled previously on whether production documents which are presented to a port, or any other CBP office, must be in English or submitted with an English translation along with the foreign language documents. We requested counsel obtain English translations of the documents which were previously submitted to the port so that we could consider the sufficiency of the documentation to support the claim
The CBP Regulations provide at 19 C.F.R. § 141.86 with regard to the contents of invoices and general requirements:
(d) Invoice to be in English. The invoice and all attachments shall be in the English language, or shall have attached thereto an accurate English translation containing adequate information for examination of the merchandise and determination of duties.
In Headquarters Ruling Letter (HQ) 554842, dated March 1, 1991, citing to § 141.86(d), CBP stated: “Customs relies on importers to prepare and present adequate information. Customs cannot expect its employees to understand invoices in foreign languages.” While § 141.86(d) and HQ 554842 dealt with invoice requirements, the same sentiment is true with regard to production documents which CBP may request to verify a claim of origin or claim for preferential tariff treatment. In HQ 546450, dated July 3, 1997, examining which sale should serve as the basis for transaction value of certain ladies’ wearing apparel, CBP stated:
While the information presented in regard to the first sale supports your contention that the merchandise is clearly destined for export to the U.S. at the time it is sold by the manufacturer to the middleman, sufficient documentation must be available and presented to Customs, if requested. . . . Complete English translations of the pertinent documents would be required. . . .
[Emphasis added.]
See also HQ 964606, dated May 2, 2002 (“Schematics and other documents were not explained in English. Protestant has failed to provide the evidence that would persuade us of this claim.”); HQ 967388, dated March 20, 2006 (CBP found it did not have sufficient evidence that the attenuator at issue was misclassified, as CBP was not provided with a schematic in English of the good.); and HQ 230353, dated October 14, 2004 (Pages submitted from a German company to confirm that exported fabrics were received in Germany are of no evidentiary value because they are in German.).
We note that in the CBP regulations implementing various free trade agreements or other preferential trade programs, with regard to certificates of origin and other declarations which are required under those programs, CBP has allowed the certificates or declarations to be completed in English or another language. However, if a document is completed in a language other than English, upon written request from CBP, the importer must provide an English translation of the document. See 19 C.F.R. §§ 10.216, 10.226, 10.236, 10.228, 10.246, 10.248, 10.256, 10.411, 10.422, 10.584 and 181.22 (Provisions for the submission of certificates of origin under the African Growth and Opportunity Act, the Caribbean Basin Trade Partnership Act (CBTPA), declaration of compliance for CBTPA brassieres, submission of certificates of origin under the Andean Trade Promotion and Drug Eradication Act, declaration of compliance for ATPDEA brassieres, United States – Chile Free Trade Agreement, Dominican Republic – Central America – United States Free Trade Agreement and the North American Free Trade Agreement). However, the regulations for the United States – Jordan Free Trade Agreement, at 19 C.F.R. § 10.704, require that any certification or declaration, submitted at the request of the port director, be in English. This is also true in the regulations for the United States – Singapore Free Trade Agreement (§ 10.511), the United States – Morocco Free Trade Agreement (§ 10.764), and the United States – Bahrain Free Trade Agreement (§ 10.804), which all require English be used in filing any declarations with the port.
With regard to production records submitted to a port such as those presented here, it is incumbent on the importer to present documentation which CBP personnel will be able to analyze and consider. Such documentation must either be in English or, if in a foreign language, accompanied by an English translation. Anything else falls short of the importer’s obligation to exercise reasonable care in providing information which is necessary to enable CBP to properly assess duties, collect accurate trade statistics and determine whether any other applicable legal requirements are met. See 19 U.S.C. § 1484.
As to the production documents which protestant was afforded the opportunity to resubmit with English translations, the documents were not sufficiently translated so that experienced customs personnel could understand them and discern their linkage to the merchandise at issue in the protested entries. We agree with the port that documentation submitted to CBP to support a claim of origin or preferential tariff treatment must be in a format and language which is understandable to CBP personnel. Failure to present production documents either in English or with an English translation will likely result in a denial of a claim.
HOLDING:
The subject protest is denied. 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