Slip Op. 09-80 

UNITED STATES COURT OF INTERNATIONAL TRADE

POLLY U.S.A., INC. et al., 

 

 Plaintiff, 

v. 

UNITED STATES, 

 

 Defendant. 

Before: Richard W. Goldberg, 

 Senior Judge 

Court No. 06-00312 

OPINION

[Customs’ denial of Polly’s protest is sustained; Customs’ 

Motion for Summary Judgment is granted]. 

Dated: August 6, 2009 

Law Firm of Knar K. Mouhibian (Knar K. Mouhibian) for 

Plaintiffs Polly U.S.A., Inc., Mansheen Industries Ltd., 

and W & W Garments (PTY) Ltd. 

Tony West, Assistant Attorney General; Barbara S. Williams, 

Attorney-in-Charge, International Trade Field Office, 

Commercial Litigation Branch, Civil Division, United States 

Department of Justice (Amy M. Rubin), for Defendant United 

States. 

Goldberg, Senior Judge: This case involves an entry of 

unisex medical uniforms made at the port of Dallas, Texas 

by Polly USA, Inc., Mansheen Industries Ltd., W & W 

Garments (PTY) Ltd. (collectively “Polly”) in March of 

2005. The United States Customs and Border Protection 
Court No. 06-00312 Page 2

(“Customs”) denied Polly’s claim to a trade preference 

under the African Growth and Opportunity Act (AGOA) based 

on deficiencies and discrepancies in Polly’s documentation. 

Polly challenged this denial, and both parties filed crossmotions for summary judgment. For the foregoing reasons, 

Customs’ denial of Polly’s protest is sustained, and 

Customs’ motion for summary judgment is granted. 

I. BACKGROUND

 In March 2005, Polly exported unisex medical uniforms 

to the United States. This entry contained three different 

style numbers: 10506, 10106, and 50506. The garments were 

entered under subheading 9819.11.12 of the Harmonized 

Tariff Schedule of the United States (HTSUS), which 

provides duty-free treatment to certain apparel items 

imported from designated sub-Saharan countries under AGOA. 

In its country of origin declaration, Polly represented the 

merchandise as having been fully manufactured in the 

country of Swaziland, a designated beneficiary under AGOA. 

 In April 2005, Customs requested additional 

documentation from Polly establishing that the goods were 

fully manufactured in Swaziland. Customs specifically 

requested the production records for the items, including 

cutting and sewing records, information about production 
Court No. 06-00312 Page 3

processes and timelines, and worker documentation and 

records. Customs warned Polly that if the documents failed 

to establish a traceable production timeline, its claim for 

preferential treatment would be denied. In response, Polly 

provided additional supporting documentation. Customs, 

however, denied Polly’s AGOA claim because Polly failed to 

provide all of the documentation requested by Customs, and 

because the documentation failed to establish the required 

traceable production timeline. Customs then liquidated the 

entry under subheading 6211.33.00, HTSUS, and imposed a 

duty of 16% ad valorem. 

 Subsequently, Polly filed Protest No. 5501-06-100018 

requesting that Customs reconsider its AGOA preference 

claim. Customs denied this protest based upon Polly’s 

“inconsistent production timelines” and again finding that 

Polly failed to provide sufficient documentation. Polly 

then filed this action to challenge the denial of its 

protest. After the initial briefing, the parties filed 

cross-motions for summary judgment.1

 

                                                           

1 In its answer, Customs filed a counterclaim seeking 

additional duties because, in its view, part of the entry 

was misclassified; specifically, all of the merchandise was 

initially classified as “medical uniforms”, and Customs now 

argues that some of the items, “medical uniform-pants”, 

 (footnote continued) 
Court No. 06-00312 Page 4

II. JURISDICTION & STANDARD OF REVIEW

This Court has jurisdiction under 28 U.S.C. § 1581(a). 

On a motion for summary judgment, the Court must determine 

whether there is an issue of material fact which may impact 

the outcome of the suit. Texas Apparel Co. v. United 

States, 12 CIT 1002, 1004, 698 F. Supp. 932, 934 (1988). 

If no issues of material fact are in dispute, this Court 

may grant summary judgment to either party when ruling on 

the applicable cross-motions for summary judgment. Id. 

However, this Court is under no obligation to grant a 

motion for summary judgment merely because the parties 

contend that there are no factual issues in dispute. TIE

Commc’ns, Inc. v. United States, 18 CIT 358, 360 (1994). 

III. DISCUSSION

 The issue presented in this case is whether Customs 

has correctly determined that Polly failed to establish its 

claim to an AGOA preference.2

 The parties do not dispute 

                                                                                                                                                                                

should be classified under the separate heading 6204.63.55, 

dutiable at a rate of 28.6% ad valorem. As Customs has not 

briefed this issue, the Court deems this argument waived. 

Fermodyl Labs., Inc. v. United States, 66 Cust. Ct. 439, 

440 n.1, C.D. 4230 (1971). 

2

 Polly’s other claims are without merit. Polly’s various 

due process claims fail based on its failure to exhaust 

 (footnote continued) 
Court No. 06-00312 Page 5

that there are discrepancies in Polly’s documentation, but 

Polly argues that this is largely immaterial. The argument 

on this point is two-fold. Polly first argues that Customs 

erred in denying its protest because all that it was 

required to do in order to receive the AGOA preference was 

to file its country of origin declaration. In Polly’s 

view, this declaration was sufficient to establish that its 

entry was fully manufactured in Swaziland, and Polly 

further argues that Customs was, in fact, barred from 

requesting additional documentation under its regulations 

and advisory materials. In the alternative, Polly argues 

that even if Customs had the authority to request 

additional documentation, its documentation met this 

burden, and Customs erred in focusing on recordkeeping 

discrepancies which are unavoidable and natural in light of 

the current economic situation in Swaziland. Both of these 

arguments are addressed in turn. 

                                                                                                                                                                                

administrative remedies or are otherwise premature. 

Polly’s remaining claim under former section 19 U.S.C. § 

1520(c) fails as this section was repealed before the entry 

in dispute was made. Miscellaneous Trade and Technical 

Corrections Act of 2004, 108 Pub. L. 429, § 2105, 118 Stat. 

2434, 2598 (2004). 
Court No. 06-00312 Page 6

 A. Customs’ Authority to Request Documentation 

 

 Polly’s first argument is that its country of origin 

declaration is, of itself, sufficient to establish its 

entitlement to duty-free treatment under AGOA. This 

argument lacks merit. Polly’s argument relies on a 

misunderstanding of the AGOA preference and the applicable 

regulations. To support its argument, Polly cites to 19 

C.F.R. § 12.130 (2004), which provides that if a port 

director is unable to determine the country of origin from 

the importer’s declaration, the port director can then 

request additional documentation from the importer. In 

Polly’s view, this demonstrates that Customs lacks the 

authority to request additional documentation if it is able 

to determine the country of origin from the face of the 

declaration. However, 19 C.F.R. § 12.130 implements 7 

U.S.C. § 1854 (2000), which applies only to goods whose 

importation into the United States is limited by 

international agreement. AGOA is not an international 

agreement limiting importations from foreign countries, but 

is instead an agreement which encourages importations from 

sub-Saharan countries by providing duty-free treatment to 

those goods. Therefore, 19 C.F.R. § 12.130 is inapplicable 

to a claimed AGOA preference. 
Court No. 06-00312 Page 7

 The regulations actually governing verification of 

claims for preferential treatment under AGOA are 19 C.F.R. 

§ 10.217 (2004) and 19 C.F.R. § 10.178a (2004). Section 

10.217 provides that claims for preferential treatment are 

subject to “whatever verification the port director deems 

necessary.” Section 10.178a goes farther and imposes a 

duty upon importers to “establish and implement internal 

controls which provide for the periodic review of the 

accuracy of the declarations or other records.” In light 

of these regulations, Polly’s country of origin declaration 

alone did not establish its entitlement to preferential 

treatment, and Customs had the authority to request 

documentation establishing a traceable production timeline 

demonstrating that the entry was fully manufactured in 

Swaziland. 

 B. Customs’ Determination that Polly Failed to 

 Establish a Traceable Production Timeline. 

 Polly’s second argument is that Customs erred in 

finding that its entry was not fully manufactured in 

Swaziland. Polly argues that the documentation it 

submitted was more than sufficient to establish this fact, 

and that Customs is attempting to impose an unrealistic 

high standard of recordkeeping in light of the economic 

situation in Swaziland. This argument also lacks merit. 
Court No. 06-00312 Page 8

 Generally, Customs requires items entered duty-free or 

subject to reduced rates to put forth evidence establishing 

their country of origin. Specifically, in the AGOA 

context, 19 C.F.R. § 10.178a provides:

(e) Importer requirements. In order to make a claim 

for duty-free treatment under this section, the 

importer: 

(1) Must have records that explain how the 

importer came to the conclusion that the 

article qualifies for duty-free treatment; 

(2) Must have records that demonstrate that the 

importer is claiming that the article 

qualifies for duty-free treatment because . 

. . it is the product of a beneficiary subSaharan African country or because it is the 

manufacture of a beneficiary sub-Saharan 

country.... If the importer is claiming 

that the article is the product of, or the 

manufacture of, a beneficiary sub-Saharan 

African country, the importer must have 

records that indicate that the manufacturing 

or processing operations reflected in or 

applied to the article meet the country of 

origin rules . . . . 

(3) Must establish and implement internal 

controls which provide for the periodic 

review of the accuracy of the declarations 

or other records referred to in paragraph 

(e)(2) of this section; 

19 C.F.R. § 10.178a. Customs’ regulations also require 

that “[a]ny evidence of country of origin submitted . . . 

shall be subject to such verification as the port director 

deems necessary. In the event that the port director is 
Court No. 06-00312 Page 9

prevented from obtaining the necessary verification, the 

port director may treat the entry as dutiable.” 19 C.F.R. 

§ 10.173(c) (2008). 

 Here, the port director required Polly to submit 

various records to establish that the unisex medical 

uniforms were fully manufactured in Swaziland. While Polly 

did submit documentation, Customs found many 

inconsistencies and concluded that Polly had failed to 

establish a traceable production timeline. Overall, 

Polly’s disputed entry consisted of three styles, 10506, 

10106, and 50506, and Customs took issue with the 

production timeline Polly provided for each style. First, 

the records for style 10506 indicate that at least some of 

the sewing on this style occurred before the actual cutting 

of the cloth—an impossibility. Further, when the time 

cards provided by Polly were correlated to the sewing 

reports, there were multiple instances where the sewing 

reports indicate that the sewing was performed by a worker 

who was not clocked in on that day; i.e., by a worker who 

was not actually present to perform the sewing operations. 

In the documentation for style 10106, Polly’s daily reports 

identify which workers performed various operations, but 

Polly failed to provide the requested corresponding time 
Court No. 06-00312 Page 10

cards and salary information necessary to verify this data. 

Polly also failed to provide information identifying which 

employees performed specific operations, providing instead 

only daily summaries. On style 50506, the dates listed for 

the respective work tasks are difficult, if not impossible, 

to reconcile as they are often spread months apart, and do 

not appear to actually reflect the entry at issue. 

Furthermore, certain processing operations were again 

performed by employees who were not recorded as being 

present at the factories on the day the operations were 

performed. 

 Polly does not dispute the inconsistencies and gaps 

Customs found in its documentation, but instead argues that 

as the majority of the records support its proffered 

production timeline, it should be given the benefit of the 

doubt — particularly in light of the fact that the 

merchandise was ostensibly created in a small developing 

country where recordkeeping, at least to the extent Customs 

desires, is both impractical and impossible. This Court, 

however, while sensitive to the purposes of AGOA and the 

hardships faced by Swaziland, cannot fault Customs for 

denying Polly’s claim to preferential treatment as Customs 

has the discretion to enter these items as dutiable if the 
Court No. 06-00312 Page 11

documentation is found to be substantially insufficient– 

either in quality or quantity. As no factual dispute 

exists as to the nature of these gaps, this Court grants 

summary judgment in favor of Customs as Polly has failed to 

make a prima facie case that it was entitled to a trade 

preference based upon its failure to establish a traceable 

production timeline. Holford (USA) Ltd., Inc. v. United 

States, 26 CIT 760, 766 (2002). 

IV. CONCLUSION

Customs’ denial of Polly’s protest is SUSTAINED, and 

Custom’s motion for summary judgment is GRANTED. 

 /s/ Richard W. Goldberg

 Richard W. Goldberg

Date: August 6, 2009 Senior Judge

 New York, New York