CITA Issues Interim Procedures for U.S.-Peru TPA Commercial Availability Requests

The interim procedures are effective August 14, 2009. Written comments on the interim procedures are due by September 14, 2009.

CITA to Consider Requests to Allow Non-Originating Fabrics, Yarns, Fibers to be Treated as Originating

Under the interim procedures, CITA will consider requests to allow non-originating fabrics, yarns, or fibers to be treated as if they are originating goods if they are not available in commercial quantities in a timely manner in the U.S. or Peru.

(The U.S.-Peru TPA provides a list in Annex 3-B for fabrics, yarns, and fibers that the Parties have determined are not available in commercial quantities in a timely manner from producers in the U.S. or Peru. A textile and apparel good containing fabrics, yarns, or fibers that are included in Annex 3-B of the U.S.-Peru TPA will be treated as if it is an originating good for purposes of the specific rules of origin in Annex 4.1 of the U.S.-Peru TPA, regardless of the actual origin of those inputs.)

The goods considered under these interim procedures would be in addition to the goods listed in Annex 3-B of the U.S.-Peru TPA

Highlights of Interim Procedures on Commercial Availability Requests

CITA's notice on its interim procedures contains a detailed description of the process through which it will consider commercial availability requests to have fibers, yarns, or fabrics placed on the short supply list. The following are highlights of the process:

Submissions must be in English. All submissions in a U.S.-Peru TPA commercial availability proceeding (e.g., request, response, rebuttal, and request to remove or restrict) must be in English. If any attachments are in a language other than English, then a complete translation must be provided.

CITA to make determination not later than 30 days after request receipt. Not later than 30 business days after official receipt of a request (or not later than 44 U.S. business days where an extension is provided), CITA will notify interested entities by email and interested parties and the public by a posting on its website whether the subject product is available in commercial quantities in a timely manner in the U.S. or Peru and whether an interested entity has objected to the request.

CITA will notify the public of the determination by publication in the Federal Register when the determination results in a change to the commercial availability list in Annex 3-B of the U.S.-Peru TPA.

Types of determinations. Under these interim guidelines, CITA may respond to a commercial availability request with the following types of determinations (partial list):

Approval in unrestricted quantity - CITA has determined the subject product is not available in commercial quantities in a timely manner in the U.S. or Peru or that no interested entity has objected to the request.

Approval in restricted quantity- CITA has determined to add the subject product to the commercial availability list in Annex 3-B of the U.S.-Peru TPA with a specified restricted quantity. CITA may approve the request in a restricted quantity if it determines that a U.S.-Peru TPA supplier(s) can partially fulfill the request for the subject product. The restricted quantity specifies the amount of the subject product that can be provided by a U.S.-Peru TPA supplier(s).

CITA notes that not later than six months after adding a product to the commercial availability list with a restricted quantity, CITA may eliminate the restriction if it determines that the subject product is not available in commercial quantities in a timely manner in the U.S. or Peru.

Deemed approval - In the event that CITA does not make a determination in response to a request, not later than 45 business days after the official receipt of the request or not later than 60 business days after the official receipt of the request that was determined to lack sufficient information, the requested subject product will be added to the commercial availability list in Annex 3-B, in an unrestricted quantity.

Denial - CITA may determine that the subject product is available in commercial quantities in a timely manner in the U.S. or Peru.

Requests to remove item or restrict a quantity six months after listed. An interested entity may request that a product be either removed or that a quantity restriction be introduced no earlier than six months after a requested product has been added to commercial availability List in an unrestricted quantity.

If CITA determines that the product is available in commercial quantities in a timely manner in the U.S. or Peru (e.g., that a U.S.-Peru TPA supplier is capable to supply the entire subject product requested originally), then that product will be removed from the commercial availability list in Annex 3-B.

If CITA determines that the product is available in restricted quantities in a timely manner in the U.S. or Peru (e.g., that a U.S.-Peru TPA supplier is capable to supply part of the subject product requested originally), then a restricted quantity will be introduced for that product.

Due diligence certification required for each factual submission. An interested entity must file a due diligence certification with each submission containing factual information. If the interested entity has legal counsel or other representative, the legal counsel or other representative must file a due diligence certification with each submission containing factual information.

Any submission that lacks the applicable certifications will be considered an incomplete submission that CITA will reject and return to the submitter. CITA may verify any factual information submitted by interested entities in a U.S.-Peru TPA commercial availability proceeding.

(In the case of commercial availability requests, due diligence means the requestor has made reasonable efforts to obtain subject products from U.S.-Peru TPA suppliers. Requestors must provide certain specified documentation in order to demonstrate this requirement.)

- comments due by September 14, 2009

CITA contact- Maria Dybczak (202) 482-3651

CITA interim guidelines (FR Pub 08/14/09) available at http://edocket.access.gpo.gov/2009/pdf/E9-19559.pdf

U.S.-Peru TPA short supply list (Annex 3-B, begins on page 38) available at http://otexa.ita.doc.gov/PDFs/Annex3-B.pdf