CLA-2 RR:CR:TE 962244 jb
Port Director
U.S. Customs Service
797 S. Saragosa Road
El Paso, TX 79907
RE: Decision on Application for Further Review of Protest No. 2402-98-100021; Tariff Preference Level Certificates of Eligibility
Dear Sir:
This is a decision on an application for further review of a protest timely filed by the Law Offices of Steven Zisser, on behalf of Judy Ann of California, against your decision regarding the proper format for reporting quantities on a Tariff Preference Level (TPL) Certificate of Eligibility. The two entries which were the subject of this protest were liquidated in March and April of 1998.
FACTS:
On May 14, 1997, an entry of 884 dozen ladies’ dresses, made of 100 percent woven rayon, was filed by the importer at the port. Subsequently, on June 4, 1997, the importer filed a second entry covering 407 dozen ladies’ dresses. In both cases the dresses were cut and sewn in Mexico and thus eligible for the North American Free Trade Agreement (NAFTA) rate of duty under the TPL program. As the TPL certificates of eligibility were not available at the time the goods were entered, the dresses were entered fully dutiable. When the TPL certificates of eligibility covering both entries became available, the importer sent those certificates to his broker. The broker, in turn, filed a Supplemental Information Letter with Customs requesting the applicable duty refund for the merchandise for those two entries. In both instances Customs rejected the refund request on the grounds that the “Quantity” column of the certificates although showing a numerical amount, did not specify the HTSUS unit of quantity, that is, in dozens.
It is your opinion, that a TPL Certificate of Eligibiltiy is similar to a Visa and thus must be complete and accurate in order to qualify for the preferential NAFTA duty rate. In this respect you conclude that the TPL certificate of eligibility requires units of quantity to be designated in HTSUS terms, that is “dozens”. In the case of both entries as the unit of quantity was not specified in dozens, you conclude that TPL eligibility was appropriately denied for these entries.
The Protestant claims that the omission of the “DZ” (dozens) designation was a typographical error on the part of the Mexican government in preparing the TPL Certificates of Eligibility. Additionally, despite this omission, the quantity in dozens could clearly be inferred from other calculations (that is, Square Meter Equivalent) contained in the TPL Certificates of Eligibility and from the Invoices which are specifically referred to on the TPL Certificates of Eligibility. As such, the Protestant claims that Customs was not justified in denying TPL eligibility to these entries.
ISSUE:
Whether denial of TPL eligibility for these entries was appropriate?
LAW AND ANALYSIS:
The Customs Regulations, Section 12.132(3)(b), Certificate for Eligibility state:
In connection with a claim for NAFTA preferential tariff treatment involving non-originating textile and apparel goods subject to the tariff preference level provisions of appendix 6.B. to Annex 300-B of the NAFTA and Additional U.S. Notes 3 through 6 to Section XI, Harmonized Tariff Schedule of the United States, the importer shall submit to Customs a Certificate of Eligibility covering the goods. The Certificate of Eligibility shall be properly completed and signed by an authorized official of the Canadian or Mexican government and shall be presented to Customs at the time the claim for preferential tariff treatment is filed under §181.21 of this chapter.
We cannot find any language in the Customs Regulations or any other source relevant to TPL’s which “require” that the form must contain a designated unit of measurement in HTSUS terms. We are convinced by the Protestant’s claim that the quantities indicated on the submitted TPL certificates of eligibility can be matched with the quantities shown on the entry documents.
We would also like to emphasize that any requirements established for a “visa” should not be confused with eligibility requirements for TPL certificates of eligibility. Visas are part of bilateral textile agreements which require the quantity and unit of quantity to be stated on the visaed document. No such requirements have been established for certificates of eligibility under the current agreement.
As such, we find that the Tariff Preference Level Certificates of Eligibility are an accurate representation of the subject entries.
19 CFR §12.132(b) provides that a certificate of eligibility must be presented to Customs at the time a claim for a TPL is made. Consequently, the date of presentation cannot be established prior to submission of the certificate of eligibility. For the entries at issue, which were both made in 1997, the dates of presentation were when the certificates of eligibility were submitted to Customs, which for one entry was September 18, 1997, and for the other entry was November 26, 1997. Since the quota did not fill for the subject merchandise in 1997 and was thus open at the time of presentation for both entries, the subject entries are eligible for TPL treatment at the 1997 rates.
HOLDING:
The protest should be granted. In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065, dated August 4, 1993, Subject: Revised Protest Directive, 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 or entries in accordance with the decision must be accomplished prior to mailing the decision.
Sixty days from the date of the decision, the Office of Regulations and Rulings will make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.ustreas.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
John Durant, Director
Commercial Rulings Division