CLA-2 OT:RR:CTF:VS H005129HkP
Port Director
Port of Otay Mesa
U.S. Customs and Border Protection
9777 Via de la Amistad
San Diego, CA 92154
RE: Application for Further Review of Protest No. 2506-06-100092; Subheading 9802.00.8068, HTSUS
Dear Port Director:
This is in response to the Application for Further Review of Protest No. 2506-06-100092, timely filed by counsel on behalf of Point Conception, Inc. (Protestant). The protest concerns the denial of the partial duty exemption under subheading 9802.00.8068, Harmonized Tariff Schedule of the United States (HTSUS), for women’s swimwear imported from Mexico. We apologize for our delay in responding to you.
FACTS:
According to the information submitted, the women’s swimwear (tops and bottoms) at issue were assembled in Mexico from components cut in the United States. The components were produced from U.S. and/or foreign-made fabric. The swimwear was imported in a series of entries made between September 12, 2005, and June 26, 2006.
Upon each entry, the importer claimed that the merchandise was goods of Mexico and therefore entitled to preferential duty treatment under the North American Free Trade Agreement (NAFTA). However, according to the port, Importer failed to provide the port with the requisite NAFTA Certificates of Origin after requests for information (CF-28s) were issued on July 31, 2006, August 6, 2006 (with an extension requested and granted until September 29, 2006), and September 13, 2006. After not receiving responses to any of the CF-28s, the port denied the importer’s claims for NAFTA eligibility on October 19, 4, and 17, 2006, respectively. The importer protested the port’s decision on November 17, 2006, on the basis that the NAFTA certificates and other paperwork “were on file”.
In a letter dated November 15, 2007, counsel for Protestant amended the grounds of the protest stating, “rather than claim NAFTA on the eligible portion, we hereby modify the claim to cover subh. 9802.00.8068, HTSUS on all finished garments returned from Mexico.” Counsel also stated that the facts in the original protest would support a partial duty exemption under subheading 9802.00.8068, HTSUS. Some of the documents submitted in support of the protest include a “Multiple Country Declaration - Special Program 9802.00.9000” (assembler’s affidavit), inward cargo manifests, and value letters. On August 12, 2010, this office received an email from the port stating that the protest file was reviewed and no documentation supporting the amended claim under heading 9802, HTSUS, was found.
ISSUE:
Whether the subject merchandise is eligible for a partial duty exemption under subheading 9802.00.8068, HTSUS.
LAW AND ANALYSIS:
Subheading 9802.00.80, HTSUS, provides a partial duty exemption for:
Articles … assembled abroad in whole or in part of fabricated components, the product of the United States, which (a) were exported in condition ready for assembly without further fabrication, (b) have not lost their physical identity in such articles by change in form, shape or otherwise, and (c) have not been advanced in value or improved in condition abroad except by being assembled and except by operations incidental to the assembly process such as cleaning, lubricating and painting[.]
All three requirements of subheading 9802.00.80, HTSUS, must be satisfied before an article may receive a duty allowance. An article entered under this tariff provision is subject to duty upon the full appraised value of the imported assembled article, less the cost or value of the U.S. components assembled therein, upon compliance with the documentation requirements of section 10.24, U.S. Customs and Border Protection (CBP) Regulations.
Section 10.24, CBP Regulations (19 C.F.R. § 10.24(a)(1)), requires that a declaration that the imported articles were assembled in whole or in part from fabricated components which are products of the United States be filed in connection with the entry of assembled articles claimed to be subject to the exemption under subheading 9802.00.80, HTSUS, by the person who performed the assembly operations abroad. The assembler’s declaration should include:
marks of identification or numbers, description of the component, quantity, unit value at the time and place of export from the U.S., the port and date of export from the U.S., and the name and address of the manufacturer of the component. In addition, CBP Regulations require that the importer sign an endorsement stating that the assembler’s declaration and any other information submitted in support of the entry is correct and in compliance with the legal notes to the HTSUS. See 19 C.F.R. § 10.24(a)(2).
Subsection 10.24(c) provides that, in lieu of filing duplicate lists of components and descriptions of assembly operations with each entry, the documents specified in subsection 10.24(a) may refer to assembly descriptions and lists of components previously filed with and approved by the port director, or to records showing costs, names of manufacturers, and other necessary data on components, provided the importer has arranged with the port director to maintain such records and keep them available for examination by authorized Customs officers. See 19 C.F.R. § 10.24(c).
In the instant case, the assembler’s affidavit does not contain any information on the U.S. manufacturer of the components or on the ports of export and the importer’s endorsement is not signed. Also, in the email from the port, dated August 12, 2010, it was stated that the port did not find any documentation in the protest file that supported the amended protest which claimed entitlement to a partial duty exemption under subheading 9802.00.80, HTSUS. Based on these facts, it appears that the requirements of 19 C.F.R. § 10.24(a) were not met. Accordingly, this protest should be denied.
HOLDING:
Based on the facts presented, the documentary requirements of 19 C.F.R. § 10.24 have not been met. Consequently, the imported articles are not entitled to a partial duty exemption under subheading 9802.00.8086, HTSUS. This protest should be denied.
In accordance with the Protest/Petition Processing Handbook (CIS HB, December 2007), 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 the mailing of the decision. Sixty days from the date of the decision the
Office of International Trade, Regulations and Rulings, will make the decision available to CBP personnel and to the public on the CBP website, located 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