CLA-2 OT:RR:CTF:TCM H011659 CMR
TARIFF NOs.: 9822.05.01; 9915.61.01
Gail T. Cumins, Esq.
Sharretts, Paley, Carter & Blauvelt, P.C.
Seventy-five Broad Street
New York, N.Y. 10004
RE: Eligibility of certain men’s and boys’ woven suit-type jackets for preferential treatment under DR-CAFTA special provisions (short supply and Nicaraguan tariff preference level (TPL))
Dear Ms. Cumins:
This is in response to your request of April 25, 2007, on behalf of your client, Fishman & Tobin Inc., for a binding ruling on the eligibility of certain men’s and boys’ woven suit-type jackets for preferential treatment under certain provisions of the Dominican Republic-Central America-United States Free Trade Agreement Implementation Act (hereinafter, DR-CAFTA). A sample garment was submitted with your request and will be returned, as requested, under separate cover.
FACTS:
The merchandise at issue consists of men’s and boys’ suit-type woven jackets imported into the United States from the Dominican Republic and Nicaragua. The jackets will be manufactured under two different scenarios. The jackets imported from the Dominican Republic will be cut and sewn in the Dominican Republic of non-originating (Chinese) shell fabric described as “fancy” polyester filament fabric which has been designated to be in short supply for purposes of DR-CAFTA (See Note 20(a)(64), Subchapter XXII, Chapter 98, Harmonized Tariff Schedule of the United States (HTSUS)). The merchandise will be entered under subheading 9822.05.01, HTSUS, as “[t]extile or apparel goods described in U.S. note 20 to [subchapter XXII, Chapter 98, HTSUS] and entered pursuant to its provisions.”
The jackets imported from Nicaragua will be cut and sewn in Nicaragua of non-originating woven man-made fiber shell fabric and will be entered under subheading 9915.61.01, HTSUS, which provides for “Apparel goods of Nicaragua, or cotton or man-made fibers, or subject to cotton or man-made fiber restraints, the foregoing described in U.S. note 15(b) to [subchapter XV, Chapter 99, HTSUS] and imported into the customs territory of the United States in aggregate quantities not to exceed the quantities set forth in U.S. note 15(c) to [subchapter XV, Chapter 99, HTSUS].
In manufacturing the subject jackets in the Dominican Republic and Nicaragua, your client wishes to use non-originating visible lining fabric, sewing thread, and pocket lining. You submit that the jackets produced as described above and containing the non-originating materials listed in the preceding statement qualify for duty-free entry under DR-CAFTA.
ISSUE:
Are the subject jackets which are cut and sewn in the Dominican Republic and Nicaragua as described above eligible for preferential treatment, that is duty-free entry, under DR-CAFTA?
LAW AND ANALYSIS:
The Dominican Republic--Central America--United States Free Trade Agreement (“DR-CAFTA” or “Agreement”) was signed by the governments of Costa Rica, the Dominican Republic, El Salvador, Guatemala, Honduras, Nicaragua, and the United States on August 5, 2004. The DR-CAFTA was approved by the U.S. Congress with the enactment on August 2, 2005, of the Dominican Republic-Central America-United States Free Trade Agreement Implementation Act (the “Act”), Pub. L. 109-53, 119 Stat. 462 (19 U.S.C. 4001 et seq.). The Dominican Republic, El Salvador, Guatemala, Honduras, Nicaragua and the United States are currently parties to the agreement.
General Note (GN) 29 of the HTSUS implements the DR-CAFTA. GN 29(a) states, in relevant part:
Goods for which entry is claimed under the terms of the Dominican Republic-Central America-United States Free Trade Agreement are subject to duty as set forth herein. For the purposes of this note –
originating goods or goods described in subdivision (a)(ii), subject to the provisions of subdivisions (b) through (n) or this note, that are imported into the customs territory of the United States and entered under a provision –
* * *
in chapter 98 or 99 of the tariff schedule where rate of duty or other treatment is specified,
are eligible for the tariff treatment and quantitative limitations set forth therein in accordance with sections 201 through 203, inclusive, of the Dominican Republic-Central America-United States Free Trade Agreement Implementation Act (Pub. L. 109-53; 119 Stat. 462)[.]
* * *
GN 29(b) sets forth criteria for determining whether a good (other than agricultural goods provided for in GN 29(a)(ii)) is an originating good for purposes of the DR-CAFTA. GN 29(b) states, in relevant part:
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 –
* * *
(ii) the good was produced entirely in the territory of one or more of the
parties to the Agreement, and –
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
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
* * *
[Emphasis added.]
Subdivision (n) referred to in GN 29(b) sets forth the tariff shift method of qualifying as an originating good under DR-CAFTA. GN 29(m)(viii)(B) provides an alternative method for an apparel good to qualify as an “originating” good under DR-CAFTA. GN 29(m)(viii)(B) provides:
An apparel good of chapter 61 or 62 of the tariff schedule and imported under heading 9822.05.01 of the tariff schedule shall be considered originating if it is cut or knit to shape, or both, and sewn or otherwise assembled in the territory of
one or more of the parties to the Agreement, and if the fabric of the outer shell, exclusive of collars and cuffs where applicable, is wholly of –
one or more fabrics listed in U.S. note 20 to subchapter XXII of chapter 98; or
one or more fabrics formed in the territory of one or more of the parties to the Agreement from one or more of the yarns listed in U.S. note 20 to subchapter XXII; or
any combination of the fabrics referred to in subdivision (B)(1), the fabrics referred to in subdivision (b)(2) or one or more fabrics originating under this note.
The originating fabrics referred to in subdivision (B)(3) may contain up to 10 percent by weight of fibers or yarns that do not undergo an applicable change in tariff classification set out in subdivision (n) of this note. Any elastomeric yarn contained in a fabric referred to in subdivision (B)(1), (B)(2) or (B)(3) must be formed in the territory of one or more of the parties to the Agreement.
The woven suit-type jackets are apparel goods of chapter 62 of the tariff. You have indicated that the jackets which are cut and sewn in the Dominican Republic will be entered under subheading 9822.05.01, HTSUS. In addition, you state that the fabric of the outer shell is wholly of a fabric listed in U.S. note 20 to subchapter XXII of chapter 98. Specifically, you state that the outer shell fabric of the jackets cut and sewn in the Dominican Republic is a fabric listed in Note 20(a)(64), subchapter XXII, chapter 98. U.S. Note 20(a) provides:
Heading 9822.05.01 shall apply to textile or apparel goods of chapters 50 through 63 and subheading 9404.90 that contain any of the fabrics, yarns or fibers set forth herein, are described in general note 29 to the tariff schedule and otherwise meet the requirements of such general note 29:
* * *
(64) Woven “fancy” 100 percent polyester filament fabric, containing at least three different yarns of different color, of plain, twill or satin weave in combinations of the metric equivalent of 75 denier, 100 denier, 150 denier, and 300 denier yarn sizes, and of 100 percent cationic fivers or mixes of 25 percent cationic/75 percent disperse or 50 percent cationic/50 percent disperse fibers, of a width of 147.3 cm or 152.4 cm, classified in subheading 5407.53.20[.]
Based on the submitted information, the jackets which are cut and sewn in the Dominican Republic qualify as “originating” goods by application of GN 29(m)(viii)(B), provided that the fabric of the outer shell meets the specific description set forth in U.S. Note 20(a)(64).
With regard to the jackets which are cut and sewn in Nicaragua of non-originating woven man-made fabric and entered under subheading 9915.61.01, HTSUS, U.S. note 15(a) sets forth the conditions which must be met by apparel goods classifiable in subheading 9915.61.01, HTSUS. U.S. Note 15(a) provides:
The rate of duty provided for in subheading 9915.61.01 in the “Special” subcolumn of rates of duty column 1 shall apply to goods of Nicaragua, in an aggregate quantity not to exceed the annual total quantity set forth in subdivision (c) of this note. Subheading 9915.61.01 applies to the cotton or man-made fiber apparel goods described in this note if the goods meet the applicable conditions for preferential tariff treatment under general note 29 to the tariff schedule, other than the condition that they be originating goods and are both cut or knit to shape, and sewn or otherwise assembled, in the territory of Nicaragua.
[Emphasis added.]
Subheading 9915.61.01, HTSUS, refers to U.S. note 15(b) to subchapter XV, Chapter 99, HTSUS, to identify the apparel goods within the scope of the subheading. U.S. note 15(b) provides:
The apparel goods of cotton or of man-made fibers, or subject to cotton or man-made fiber restraints, enumerated herein and provided for in chapters 61 or 62 shall receive the tariff treatment set forth in subheading 9915.61.01. For purposes of this note, an apparel good must be classifiable in a tariff provision enumerated in the first column below and be described opposite such provision:
Subheading Articles Eligible for Treatment as
Apparel Goods Under this Note
* * *
(20) . . ., 6203.33.20, . . . . Men’s or boys’ suits, ensembles,
suit-type jackets, blazers, . . ., of
cotton or man-made fiber, or
subject to cotton or man-made
fiber restraints
The men’s and boys’ jackets at issue are classifiable in subheading 6203.33.20, HTSUS, which provides for “Men's or boys' suits, ensembles, suit-type jackets, blazers,
trousers, bib and brace overalls, breeches and shorts (other than swimwear): Suit-type jackets and blazers: Of synthetic fibers: Other [other than containing 36 percent or more by weight of wool or fine animal hair].” As the jackets are classifiable in a provision identified in U.S. note 15(b) to subchapter XV, Chapter 99, HTSUS, by both subheading number and description and are man-made fiber apparel goods which are cut and sewn in the territory of Nicaragua, the jackets qualify for duty-free entry under subheading 9915.61.01, HTSUS, in aggregate quantities not to exceed the quantities set forth in U.S. note 15(c) to subchapter XV, Chapter 99, HTSUS.
In your submission you requested confirmation that the goods at issue herein produced and entered as described above would be eligible for duty-free entry without regard to the origin of visible lining fabrics, sewing thread or pocketing material. The provisions at issue in this ruling make no reference to the materials with which you are concerned. GN 29(n), Chapter 62, does contain rules which set forth requirements for visible lining fabrics in apparel and the use of sewing thread. At this time, there is no rule regarding pocketing material. As GN 29(m)(viii)(B) is an alternative to GN 29(n) for purposes of determining if an apparel good is originating for purposes of DR-CAFTA, rules contained within GN 29(n), Chapter 62, are not applicable to apparel goods qualifying as originating goods under GN 29(m)(viii)(B). Additionally, subheading 9915.61.01, HTSUS, reflects the implementation of a tariff preference level (TPL) for non-originating apparel goods of Nicaragua. As these goods are non-originating, rules contained in GN 29(n), Chapter 62, for determining if an apparel good is originating are simply not applicable to non-originating goods of subheading 9915.61.01, HTSUS.
HOLDING:
The men’s and boys’ jackets cut and sewn in the Dominican Republic and Nicaragua, as described above, are eligible for duty-free entry under subheadings 9822.05.01, HTSUS, and 9915.61.01, HTSUS, respectively.
A copy of this ruling letter should be attached to the entry documents filed at the time this merchandise is entered. If the documents have been filed without a copy, this ruling should be brought to the attention of the CBP officer handling the transaction.
Sincerely,
Gail A. Hamill, Chief
Tariff Classification and Marking Branch