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Abstract: The United States and Peru negotiated the US-Peru Trade Promotion Agreement (the Agreement), which entered into force on February 1, 2009. Under the textile provisions of the Agreement, fabric, yarn, and fiber produced in Peru or the United States and traded between the two countries are entitled to duty-free tariff treatment (See Annex 4.1 of the Agreement for the specific rules of origin that apply). The Agreement also lists specific fabrics, yarns, and fibers that the two countries agreed are not available in commercial quantities in a timely manner from producers in Peru or the United States (See Annex 3-B of the Agreement for a complete list of these products). These commercially unavailable fabrics, yarns, and fibers are also entitled to duty-free treatment despite not being produced in Peru or the United States. The list of commercially unavailable fabrics, yarns, and fibers may be changed pursuant to the commercial availability provision of the Agreement (See Chapter 3, Article 3.3, Paragraphs 5-7 of the Agreement). Under this provision, interested entities from Peru or the United States have the right to request that a specific fabric, yarn, or fiber be added to, or removed from, the list of commercially unavailable fabrics, yarns, and fibers. Chapter 3, Article 3.3, paragraph 7 of the Agreement requires that the President promptly publish procedures for parties to exercise the right to make these requests. The President delegated the responsibility for publishing the procedures and administering commercial availability requests to the Committee for the Implementation of Textile Agreements (CITA), which issues procedures and acts on requests through the Office of Textiles and Apparel (OTEXA) (See Proclamation No. 8341, 73 Fed. Reg. 4105, 4107, Jan. 22, 2009). OTEXA was unable to publish these procedures earlier because of the memorandum issued by the President on January 20, 2009, in which executive agencies were directed to refrain from publishing any interim or final rules or regulations until such time as the officials appointed by the President were in place and able to review all proposed rules and regulations, unless the agency obtained a waiver from the Office of Management and Budget (OMB). The intent of the U.S.-Peru TPA Commercial Availability Procedures is to foster the use of U.S. and regional products by implementing procedures that allow products to be placed on or removed from a product list, on a timely basis, and in a manner that is consistent with normal business practice. The procedures are intended to facilitate the transmission of requests; allow the market to indicate the availability of the supply of products that are the subject of requests; make available promptly, to interested entities and the public, information regarding the requests for products and offers received for those products; ensure wide participation by interested entities and parties; allow for careful review and consideration of information provided to substantiate requests and responses; and provide timely public dissemination of information used by CITA in making commercial availability determinations. CITA must collect certain information about fabric, yarn, or fiber technical specifications and the production capabilities of Peruvian and U.S. textile producers to determine whether certain fabrics, yarns, or fibers are available in commercial quantities in a timely manner in the United States or Peru, subject to Section 203(o) of the US-PERU TPA.

Emergency Justfication: Chapter 3, Article 3.3, paragraph 7 of the US-Peru Trade Promotion Agreement (the "Agreement") requires that the President promptly publish procedures for parties to exercise the right to request that a specific fabric, yarn, or fiber be added to, or removed from, the list of commercially unavailable fabrics, yarns, and fibers to the list in Annex 3-B. This right became effective when the Agreement entered into force. The President delegated the responsibility for publishing the procedures and administering commercial availability requests to the Committee for the Implementation of Textile Agreements (CITA), which issues procedures and acts on requests through the Office of Textiles and Apparel (OTEXA) (See Proclamation No. 8341, 73 Fed. Reg. 4105, 4107, Jan. 22, 2009). OTEXA was unable to publish these procedures earlier because of the memorandum issued by the President on January 20, 2009, in which executive agencies were directed to refrain from publishing any interim or final rules or regulations until such time as the officials appointed by the President were in place and able to review all proposed rules and regulations, unless the agency obtained a waiver from the Office of Management and Budget (OMB). The intent of the U.S.-Peru TPA Commercial Availability Procedures is to foster the use of U.S. and regional products by implementing procedures that allow products to be placed on or removed from a product list, on a timely basis, and in a manner that is consistent with normal business practice. The procedures are intended to facilitate the transmission of requests; allow the market to indicate the availability of the supply of products that are the subject of requests; make available promptly, to interested entities and the public, information regarding the requests for products and offers received for those products; ensure wide participation by interested entities and parties; allow for careful review and consideration of information provided to substantiate requests and responses; and provide timely public dissemination of information used by CITA in making commercial availability determinations. Thus far, no interested party has exercised its right to request that a fabric, yarn, or fiber be added to, or removed from the list of commercially unavailable fabrics, yarns, and fibers. If an interested party submits a request, however, CITA will still be bound by the terms of the Agreement to make a determination as to whether the fabric, yarn, or fiber should be added to or removed from the list. Because there are no procedures in place for making requests, CITA faces significant litigation risk on every procedural determination made in the process of evaluating a request, in addition to the risk of litigation over substantive determinations. Further, any determination reached by CITA may not be enforceable if CITA does not have approval for the collection of information necessary to make its substantive determinations. Moreover, without procedures in place, the United States risks not being in compliance with its international obligations under the Agreement.

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