H323405

H323405 November 16, 2022 OT:RR:CTF:VS H323405 JMV CATEGORY: Origin Center Director Apparel, Footwear, and Textiles CEE U.S. Customs and Border Protection 139 Southern Road Savannah, Georgia 31405 RE: Application for Further Review of Protest No. 5206-19-100137; Peru Trade Promotion Agreement; Origin Dear Center Director, The following is our decision regarding the Application for Further Review (“AFR”) of Protest No. 5206-19-100137, timely filed on February 19, 2019, on behalf of the protestant, Lucky 7 Fashion Super Discount III, Inc. (“Lucky”). Lucky contests U.S. Customs and Border Protection’s (“CBP”) denial of its claim for preferential tariff treatment under the Peru Trade Promotion Agreement (“PTPA”). FACTS: This protest stems from an origin verification wherein CBP found that Lucky has not provided sufficient documentation to demonstrate that the garments at issue qualify for preferential tariff treatment under the PTPA. Lucky is a Florida based company that imports apparel and merchandise manufactured in Peru. Lucky then distributes the imported goods to its stores located in South Florida, which are either wholesale or retail, and offers private label services. Lucky states that its manufacturer is Peru Cotton Tex Sac (“Peru Cotton”), however, Peru Cotton contracts out all production to various cutting and sewing operators. The verification involved eight entries of textile goods. Lucky and CBP agreed to limit the scope of the verification to one entry line per entry, all of which fell under either Chapter 61 or 62 of the Harmonized Tariff Schedule of the United States (“HTSUS”), which cover Articles of apparel and clothing accessories, knitted or crocheted and Articles of apparel and clothing accessories, not knitted or crocheted, respectively. Specifically, these entries included women’s overalls, women’s knitted t-shirts, women’s cotton shorts, men’s cotton trousers, women’s knitted cotton dresses, men’s knitted shorts, and men’s knitted t-shirts classified under subheadings 6103.43, 6104.42, 6109.90, 6203.42, and 6204.62, HTSUS. In support of this protest, for each of the entry lines examined, Lucky provided: suppliers’ “Affidavit of Origin” for the sewing thread and fabric, transportation documents between various producers in the production process, lab test reports on sewing thread and fabric fiber, proofs of payments, purchase orders, production orders for sewing and cutting operations, and invoices. We note that none of the affidavits are “sworn to” or notarized. ISSUE: Whether the importer provided sufficient documentation to sustain a claim of origin under the PTPA. LAW AND ANALYSIS: The PTPA was signed by the Governments of Peru and the United States on April 12, 2006. The PTPA was approved by the U.S. Congress with the enactment on December 14, 2007, of the PTPA Implementation Act (“the Act”), Pub. L. 110-138, 121 Stat. 1455 (19 U.S.C. 3805). General Note (“GN”) 32 of the HTSUS implements the PTPA. GN 32(b) sets forth the criteria for determining whether a good is an originating good for purposes of the PTPA. GN 32(b) states: For the purposes of this note, subject to the provisions of subdivisions (c), (d), (m) and (n) thereof, 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— (i) the good is a good wholly obtained or produced entirely in the territory of Peru, the United States, or both; (ii) 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 the good was produced entirely in the territory of Peru, the United States, or both, exclusively from materials described in subdivision (b)(i) or (b)(ii) of this note. In the instant case, Lucky does not claim that the imported garments meet the definition of the expression “good wholly obtained or produced” listed under GN 32(c)(i). Since the garments are not considered “wholly obtained or produced” as set forth in GN 32(c)(i), HTSUS, we must determine whether the non-originating materials would satisfy the applicable change in tariff classification. The men’s shorts are classified under subheading 6103.43, HTSUS. The rule of origin for this subheading is: A change to subheadings 6103.41 through 6103.49 from any other chapter, except from headings 5106 through 5113, 5204 through 5212, 5307 through 5308, 5310 through 5311, 5401 through 5402, subheading 5403.20, 5403.33 through 5403.39, 5403.42 through 5403.49, headings 5404 through 5408, 5508 through 5516 or 6001 through 6006, provided that the good is cut or knit to shape, or both and sewn or otherwise assembled in the territory of Peru, the United States, or both. Lucky argues that the tariff shift rule for the men’s shorts is satisfied because the shorts are manufactured in the territory from 100% polyester fiber classified in heading 5506, HTSUS. The women’s cotton knitted dresses are classified under subheading 6104.42, HTSUS, with the following tariff shift rule: A change to subheadings 6104.41 through 6104.49 from any other chapter, except from headings 5106 through 5113, 5204 through 5212, 5307 through 5308, 5310 through 5311, 5401 through 5402, subheading 5403.20, 5403.33 through 5403.39, 5403.42 through 5403.49, headings 5404 through 5408, 5508 through 5516 or 6001 through 6006, provided that the good is cut or knit to shape, or both and sewn or otherwise assembled in the territory of Peru, the United States, or both. Lucky argues that the tariff shift rule for the women’s cotton knitted dresses is satisfied because the dresses are manufactured in the territory from 95% cotton, 5% spandex fiber classified in heading 5506, HTSUS. The men’s knitted t-shirts of other textile materials and the women’s knitted t-shirts of other textile materials are classified under subheading 6109.90, HTSUS, with the following tariff shift rule: A change to headings 6105 through 6111 from any other chapter, except from headings 5106 through 5113, 5204 through 5212, 5307 through 5308, 5310 through 5311, 5401 through 5402, subheading 5403.20, 5403.33 through 5403.39, 5403.42 through 5403.49, headings 5404 through 5408, 5508 through 5516 or 6001 through 6006, provided that the good is cut or knit to shape, or both and sewn or otherwise assembled in the territory of Peru, the United States, or both. Lucky argues that the tariff shift rule for the men’s and women’s knitted t-shirts is satisfied because the t-shirts are manufactured in the territory from 95% polyester, 5% spandex fiber classified in heading 5506, HTSUS, and that women’s knitted t-shirts of other textile materials are manufactured from 95% viscose, 5% spandex fiber also classified in heading 5506, HTSUS. The men’s trousers of cotton are classified under subheading 6203.42, HTSUS, with the following tariff shift rule: A change to subheadings 6203.41 through 6203.49 from any other chapter, except from headings 5106 through 5113, 5204 through 5212, 5307 through 5308, 5310 through 5311, 5401 through 5402, subheading 5403.20, 5403.33 through 5403.39, 5403.42 through 5403.49, headings 5404 through 5408, 5508 through 5516, 5801 through 5802 or 6001 through 6006, provided that the good is cut or knit to shape, or both and sewn or otherwise assembled in the territory of Peru, the United States, or both. Lucky argues that the tariff shift rule for the imported men’s trousers is satisfied because the trousers are manufactured in the territory from 95% polyester, 5% spandex fiber classified in heading 5506, HTSUS. The women’s dresses of cotton are classified under subheading 6204.42, 

The PTPA was signed by the Governments of Peru and the United States on April 12, 2006. The PTPA was approved by the U.S. Congress with the enactment on December 14, 2007, of the PTPA Implementation Act (“the Act”), Pub. L. 110-138, 121 Stat. 1455 (19 U.S.C. 3805). General Note (“GN”) 32 of the HTSUS implements the PTPA. GN 32(b) sets forth the criteria for determining whether a good is an originating good for purposes of the PTPA. GN 32(b) states:For the purposes of this note, subject to the provisions of subdivisions (c), (d), (m) and (n) thereof, 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—(i) the good is a good wholly obtained or produced entirely in the territory of Peru, the United States, or both;(ii) 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; orthe good was produced entirely in the territory of Peru, the United States, or both, exclusively from materials described in subdivision (b)(i) or (b)(ii) of this note.In the instant case, Lucky does not claim that the imported garments meet the definition of the expression “good wholly obtained or produced” listed under GN 32(c)(i). Since the garments are not considered “wholly obtained or produced” as set forth in GN 32(c)(i), HTSUS, we must determine whether the non-originating materials would satisfy the applicable change in tariff classification. The men’s shorts are classified under subheading 6103.43, HTSUS. The rule of origin for this subheading is:A change to subheadings 6103.41 through 6