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HQ 562136

March 11, 2002

CLA-2 RR:CR:SM 562136 KSG


Port Director
U.S. Customs Service
6601 W. 25th Street
Miami, Florida 33102-5280

RE: Application for Further Review of Protest No. 5201-01-100136; submission of supporting documentation; NAFTA

Dear Director:

This is in reference to a Protest and Application for Further Review timely filed by the surety, Frontier Insurance Co., contesting the denial of duty-free treatment under the North American Free Trade Agreement ("NAFTA"), for certain girls' clothing.


Collegeware USA entered girls' mesh tops exported from Mexico on December 7, 1999, under the NAFTA.

Customs sent a verification letter on Customs Form (CF) 28, to Playeras Trueno, S.A. De C.V., the Mexican exporter and producer, on January 7, 2000, requesting the following documents to substantiate the NAFTA claim for the clothing: 1) a list of materials used in the manufacture of the originating garments; 2) names and addresses of the suppliers of these materials; 3) certificate of origin and/or manufacturer's affidavits, with style number, for materials considered originating; 4) a list of the production/manufacturing process of the originating garments; and 5) names and locations of companies performing these processes. The exporter/producer was given 30 days to provide this documentation.

The exporter/producer did not submit all of the requested documentation. A partial response was received by Customs dated February 7, 2000, indicating that the materials used to produce the garments were mesh fabric, tricot lining, thread and labels. The names and addresses of the fabric and lining, thread and label suppliers were provided, indicating that they were all located in Mexico. The producer of the garment listed the manufacturing processing: "pattern design, cutting fabric, sewing garments, quality inspection and packaging." A follow-up verification letter (CF 28) was sent to the Mexican exporter/producer on February 23, 2000, asking 1) why preference criterion C was claimed on the Certificate of Origin when all the components were from Mexico; 2) the names and locations of companies performing these processes; and 3) manufacturer's affidavits indicating part numbers for all materials considered originating.

Customs received a response to the second CF-28 dated April 6, 2000, from Aircargo Brokerage Company, on behalf of the importer. Aircargo stated that there was a typographical error on the Certificate of Origin and that the preference criterion should be an "A." A manufacturer's affidavit was submitted from Playeras Trueno indicating that the origin of the mesh tops was Mexico and that the fabric and yarn used to manufacture the tops were of Mexican origin. A declaration from the mesh fabric supplier dated April 13, 2000, was submitted indicating that the fabric was "wholly made and produced in Mexico."

On June 1, 2000, Customs issued a Notice of Action denying the NAFTA claim because no yarn affidavit was provided to show that the yarn used to make the mesh fabric was made in Mexico. The entry was liquidated on June 30, 2000, with an increase in duties. A demand was made on the surety on December 10, 2000. A protest was filed by the surety on January 10, 2001, claiming NAFTA treatment for the clothing.

On March 29, 2001, a CF-28 was issued to Frontier Insurance, the surety for Collegeware USA, requesting a valid NAFTA certificate of origin correcting the previously improperly classified merchandise, and an affidavit from the yarn supplier certifying the origin of the yarn used to produce the garments.

On September 7, 2001, the protestant submitted a NAFTA Certificate of Origin in which the tops were classified in subheading 6110.30.3055, of the Harmonized Tariff Schedule of the United States ("HTSUS"), and an affidavit from Playeras Trueno, the producer of the garment, dated September 4, 2001. The affidavit stated that they are the "manufacturer of both the finished good, and all the components and or materials used in the production of the finished goods" or they are in possession of valid certificates of origin from all the suppliers of all materials and components used in the production of the finished goods.


Whether the girls' apparel, entered as described above, is entitled to duty-free treatment under the NAFTA.


To qualify for entry under the NAFTA under criterion A, the rule set forth in General Note 12(b)(i), HTSUS, must be satisfied.

General Note 12(b)(i) provides as follows:

Goods imported into the customs territory of the United States are eligible for the tariff treatment and quantitative limitations set forth in the tariff schedule as "goods originating in the territory of a NAFTA party" only if—
they are goods wholly obtained or produced entirely in the territory of Canada, Mexico and/or the United States.

Section 181.71, Customs Regulations (19 CFR 181.71), provides as follows:

Customs shall deny preferential tariff treatment on an imported good, or shall deny a post-importation claim for a refund filed under subpart D of this part, only after initiation of an origin verification under section 181.72(a) of this part which results in a determination that the imported good does not qualify as an originating good or shall not be accorded such treatment for any other reason as specifically provided for elsewhere in this part.

The verification may involve the origin of a material that is used in the production of the good. See 19 CFR 181.72(a)(1).

Pursuant to this rule, the Mexican producer must be able to establish all information that is relevant to the origin determination. The garment involved in this case is classified in subheading 6110.30.3055, HTSUS. The rule for determination of whether the garment is "originating" is set forth in General Note 12(t)/61.35, HTSUS, which states:

A change to headings 6109 through 6111 from any other chapter, except from headings 5106 through 5113, 5204 through 5212, 5307 through 5308 or 5310 through 5311, chapter 54, or heading 5508 through 5516 or 6001 through 6006, provided that the good is both cut (or knit to shape) and sewn or otherwise assembled in the territory of one or more of the NAFTA parties.

The above rule is a “yarn forward” rule which means that, for articles made of man-made fabrics, (such as the polyester garments involved here), all operations in producing the article, beginning with the extrusion of the fibers, must take place in the NAFTA territory. Although the Mexican producer indicated that the fabric was formed in Mexico, we have no information regarding the origin of the yarns from which the fabric was made. Therefore, Customs asked for information regarding the origin of the yarns.

The importer submitted documentation that the fabric was formed in Mexico, and that the fabric was cut and sewn into the garments in Mexico. However, Customs also asked for information regarding the origin of the yarn, for the reason discussed above. The Mexican producer did not respond to this question; no affidavit or any other information to show that the yarn used to make the fabric originated in Mexico was submitted from the yarn supplier. Accordingly, the claim for NAFTA duty-free treatment was properly denied. The protest should be denied in full.


The importer failed to submit the requested documentation to support the claim for the entry of the girls' clothing under the NAFTA. The protest should be denied in full.

In accordance with Section a(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 should be accomplished prior to mailing of this decision. Sixty days from the date of this 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.gov, by means of the Freedom of Information Act, and other methods of public distribution.


John Durant, Director
Commercial Rulings Division

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