VAL-2 OT:RR:CTF:VS H043056 CMR
Ms. Lori J.P. Boullet
Columbia Sportswear Company
14375 NW Science Park Drive
Portland, OR 97229
RE: Request for a ruling on the tariff classification and DR-CAFTA eligibility of a certain
women’s knit jacket
Dear Ms. Boullet:
This is in response to your request of October 23, 2008, on behalf of Mountain Hardwear, a wholly owned subsidiary of Columbia Sportswear, for a binding ruling on the tariff classification under the Harmonized Tariff Schedule of the United States (HTSUS) of a women’s knit jacket, style OL3342. You also request a determination on the garment’s eligibility for preferential duty-treatment under the Dominican Republic – Central America – United States Free Trade Agreement (DR-CAFTA). You provided this office with a representative garment sample along with your request.
FACTS:
The garment at issue, style OL3342, is a women’s polyester knit upper body garment that is designed to cover the torso. The garment has long sleeves with tapered tight-fitting cuffs, two zippered pockets at the waist, an upper chest patch pocket, a full front opening with a zippered closure that extends through the collar and a chin guard on the upper portion of the zipper, and a banded bottom. The majority of the body and long sleeves of the garment are comprised of 100 percent polyester pile knit fabric that has been napped on both the inside and outside surfaces. The lower side panels, banded bottom hem, wrist cuffs, outside of the collar, and the upper chest patch pocket are made up of 88 percent polyester, 12 percent elastane stretch fleece fabric. The chin guard is made up of 100 percent polyester knit tricot fabric with a narrow woven fabric (i.e. woven binding) sewn over the edge. The chest pocket and the back of the collar are embroidered with the Mountain Headwear logo. A narrow woven fabric (tape) is used to form a hanger loop inside the garment at the back of the neck.
The garment is constructed of pieced fabric construction. The front of the garment has a yoke panel and a front panel extending from the bottom of the yoke (just below the shoulder/upper chest area) to the banded bottom on each side of the zipper closure. These front panels are lined with 100 percent polyester knit tricot fabric. The side panels consist of an upper panel of the 100 percent polyester high pile knit fabric and a lower panel of the 88 percent/12 percent polyester/elastane stretch fleece fabric. The back panel is a single panel with no yoke.
The front zippered pockets are created by placing a zipper where the front panels and lower side panels join and allowing the front panel to be the front of the pocket and the lining fabric to form the back of the pocket. There is no stitching to restrict items placed in these pockets so that they may slide anywhere within the pocket area formed by the joining of the front panel and lining fabric.
The 100 percent polyester knit pile fabric which makes up the majority of the body and long sleeves of the garment is produced in the United States from yarns spun in the United States of U.S. fibers. The 88 percent polyester, 12 percent elastane fleece fabric, used in the garment as described above, is manufactured in the United States from yarns manufactured in the United States of U.S. fibers or other materials. The 100 percent polyester knit tricot fabric for the chin guard is manufactured in Canada from yarns spun in the United States. The 100 percent polyester knit tricot fabric used to line the front panels (which you refer to as “inset pocket piecing”) is manufactured in China from Taiwanese yarns. All of the fabric used in producing the garments is shipped to El Salvador in material lengths, i.e., on rolls of either 60 inches or 58 inches in width.
The filament polyester sewing thread used to assemble the cut components is formed and finished in the United States. The embroidery thread on the left chest pocket and the center back collar is also formed and finished in the United States.
You indicate that the garments will be manufactured in El Salvador from the fabrics and trims described above. In El Salvador, the fabrics and trims will be cut into components and assembled into the finished garments. The garments will be shipped from El Salvador directly to the United States.
We have also been requested to consider the eligibility of the garment for preferential treatment under the DR-CAFTA if the 100 percent polyester knit tricot fabric used to line the front panels is fabric originating under the DR-CAFTA and sourced in the United States.
ISSUES:
I. What is the classification of the submitted garment, style OL3342, under the HTSUS?
II. Does the submitted garment qualify for preferential tariff treatment under the DR-CAFTA?
LAW AND ANALYSIS:
Classification
Classification of goods under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) is governed by the General Rules of Interpretation (GRIs). GRI 1 provides that "classification shall be determined according to the terms of the headings and any relative section or chapter notes and, provided such headings or notes do not otherwise require, according to [the remaining GRIs taken in order]."
The garment at issue, style OL3342, is described by you as a women’s polyester knit jacket. Heading 6102, HTSUS, provides for “Women's or girls' overcoats, carcoats, capes, cloaks, anoraks (including ski-jackets), windbreakers and similar articles, knitted or crocheted, other than those of heading 6104.”
The Harmonized Commodity Description and Coding System Explanatory Notes (“EN”) constitute the official interpretation of the Harmonized System at the international level (for the 4 digit headings and the 6 digit subheadings) and facilitate classification under the HTSUSA by offering guidance in understanding the scope of the headings and GRI. While neither legally binding nor dispositive of classification issues, the EN provide commentary on the scope of each heading of the HTSUSA and are generally indicative of the proper interpretation of the headings. See T.D. 89-80, 54 Fed. Reg. 35127-28 (Aug. 23, 1989).
The EN to heading 6102 state that the provisions of the EN to heading 6101 apply mutatis mutandis to the articles of this heading. The EN to heading 6101, in turn, state, in relevant part:
This heading covers a category of knitted or crocheted garments for men or boys, characterised by the fact that they are generally worn over all other clothing for protection against the weather.
It includes :
Overcoats, raincoats, car-coats, capes including ponchos, cloaks, anoraks including ski-jackets, wind-cheaters, wind-jackets and similar articles, such as three-quarter coats, greatcoats, hooded capes, duffel coats, trench coats, gabardines, parkas, padded waistcoats.
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In addition, CBP’s Informed Compliance Publication entitled, “What Every Member of the Trade Community Should Know About: Apparel Terminology under the HTSUS” (“Apparel Terminology ICP”), revised in June 2008, provides a glossary of working definitions for the apparel-related provisions that appear in chapters 61 and 62 of the HTSUS. While the glossary in the Apparel Terminology ICP is not definitive and not legally binding, it does serve as an aid to importers and other interested parties regarding apparel-related terms that appear in the HTSUSA.
The definition for “anoraks, windbreakers and similar articles”, provides in relevant part, that this group of garments includes:
Jackets, which are garments designed to be worn over another garment, for protection against the elements. Jackets cover the upper body from the neck area to the waist area, but are generally less than mid-thigh length. They normally have a full front opening, although some jackets may have only a partial front opening. Jackets usually have long sleeves. Knit jackets (due to the particular character of knit fabric) generally have tightening elements at the cuffs and at the waist or bottom of the garment, although children's garments or garments made of heavier material might not need these tightening elements. This term excludes knit garments that fail to qualify as jackets because they do not provide sufficient protection against the elements. Such garments, if they have full-front openings, may be considered cardigans of heading 6110 (other).
The subject garment has certain features which support classification as a jacket. These features include the close fit of the sleeve cuffs, the heavy duty zipper for the front closure which extends through the collar allowing for closure of the collar around the neck, the tight-fitting banded bottom, and the interior fabric of the front panels which provides added protection for the front of the torso against the wind and cold. The garment appears to be designed as a jacket for outdoor wear over other clothing for protection against the elements.
We initially note that we generally disregard trim and lining materials as these materials are not usually determinative of the classification of a garment. See, Headquarters Ruling Letter (HQ) 084262, dated June 21, 1989 and HQ 086504, dated December 27, 1990, each citing HQ 080817, dated August 31, 1987 for the proposition that garments are generally classified based on the material of their outer shell, except when the garments contain parts or accessories which materially contribute to their character or usefulness. Based on this precedent, in classifying the subject garment we ignore the narrow woven fabric used to form the hanger loop at the back of the neck and the narrow woven binding fabric used on the edge of the chin guard. We also do not consider the lining fabric used on the interior of the garment. Additionally, we would disregard the fabric for the chin guard in this case as it appears to be primarily a trim or finishing
item. However, we consider all of the remaining fabrics which are used to form the outer shell of the garment including the fabric forming the chest pocket. The chest pocket fabric, like all the other fabrics of the outer shell, is classifiable as knit polyester fabric. Therefore, the garment is properly classified under GRI 1 as a women’s knit jacket of man-made fibers of subheading 6102.30, HTSUS, and there is no selection of a single fabric component to determine the classification of the garment.
DR-CAFTA
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 Agreement is in effect for all parties as of January 1, 2009. See Presidential Proclamation 8331 of December 23, 2008, 73 Federal Register 79585.
On December 27, 2007, Presidential Proclamation 8213, dated December 29, 2007, was published in the Federal Register (72 Federal Register 73555). The proclamation implemented an amendment to the DR-CAFTA agreed to by the parties and described in sections 1634(a)(2) and 1634(b)(2) of the Pension Protection Act of 2006 (Public Law 109-280, 120 Stat. 780). Section 1634 of the Pension Protection Act authorizes the President to proclaim modifications to the HTSUS, some of which are subject to certain consultation and layover requirements, in order to carry out the amendments agreed to and described therein. The provisions of the DR-CAFTA at issue herein include General Note (GN) 29, Chapter 61, Chapter Rule 5 (“pocketing fabric rule”) and GN 29, Chapter 61, Rule 3B, which were proclaimed in Presidential Proclamation 8213 as modifications to the HTSUS. These modifications became effective with respect to goods that are entered or withdrawn from warehouse for consumption, on or after August 15, 2008. See 73 Federal Register 46057 (August 7, 2008, Notice by the Office of the United States Trade Representative announcing effective date). In addition, we must consider GN 29, Chapter 61, Chapter Rule 1 (“visible lining rule”).
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 –
(A) in chapters 1 through 97 of the tariff schedule for which a rate of duty appears in the “Special” subcolumn of column 1 followed by the symbol “P” or “P+” in parentheses, or
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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)[.]
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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 –
(i) the good is a good wholly obtained or produced entirely in the territory of one or more of the parties to the Agreement;
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
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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(n), Chapter 61, Rule 3B, which is applicable to the polyester knit jacket at issue, provides:
A change to subheading 6102.30 from any other chapter, except from headings 5111 through 5113, 5204 through 5212, 5310 through 5311, chapter 54, headings 5508 through 5516 or 6001 through 6006, provided that:
(a) the good 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
(b) any visible lining material contained in the apparel article must satisfy the requirements of chapter rule 1 for chapter 61.
The relevant GN 29(n), Chapter 61 chapter rules state the following:
Chapter rule 1. Except for fabrics classified in tariff items 5408.22.10, 5408.23.11, 5408.23.21 or 5408.24.10, the fabrics identified in the following headings and subheadings, when used as visible lining material in certain men's and women's suits, suit-type jackets, skirts, overcoats, carcoats, anoraks, windbreakers and similar articles, must be both formed from yarn and finished in the territory of one or more of the parties to the Agreement:
5111 through 5112, 5208.31 through 5208.59, 5209.31 through 5209.59, 5210.31 through 5210.59, 5211.31 through 5211.59, 5212.13 through 5212.15, 5212.23 through 5212.25, 5407.42 through 5407.44, 5407.52 through 5407.54, 5407.61, 5407.72 through 5407.74, 5407.82 through 5407.84, 5407.92 through 5407.94, 5408.22 through 5408.24, 5408.32 through 5408.34, 5512.19, 5512.29, 5512.99, 5513.21 through 5513.49, 5514.21 through 5515.99, 5516.12 through 5516.14, 5516.22 through 5516.24, 5516.32 through 5516.34, 5516.42 through 5516.44, 5516.92 through 5516.94, 6001.10, 6001.92, 6005.31 through 6005.44 or 6006.10 through 6006.44.
Chapter rule 2. For purposes of determining whether a good of this chapter is originating, the rule applicable to that good shall only apply to the component that determines the tariff classification of the good and such component must satisfy the tariff change requirements set out in the rule for that good. If the rule requires that the good must also satisfy the tariff change requirements for visible lining fabrics listed in chapter rule 1 to this chapter, such requirement shall only apply to the visible lining fabric in the main body of the garment, excluding sleeves, which covers the largest surface area, and shall not apply to removable linings.
Chapter rule 5. Notwithstanding chapter rule 2, a good of this chapter, other than a good of subheading 6102.20, tariff item 6102.90.90 (for goods subject to cotton restraints), 6104.12.00 (for jackets imported as parts of suits), 6104.13.20, 6104.19.15, 6104.19.80 (for jackets imported as parts of suits and subject to cotton restraints or for goods subject to man-made fiber restraints), 6104.22.00 (for garments described in heading 6102 or jackets and blazers described in heading 6104) 6104.29.20 (for garments described in heading 6102 or jackets and blazers described in heading 6104, the foregoing subject to cotton restraints), subheading 6104.32, tariff item 6104.39.20 (for goods subject to cotton restraints), 6112.11.00 (for women’s or girls’ garments described in headings 6101 or 6102), 6113.00.90 (for coats and jackets of cotton, for women or girls) or 6117.90.90 (for coats and jackets of cotton), that contains a pocket or pockets shall be considered originating only if the pocket bag fabric has been formed and finished in the territory of one or more of the parties to the Agreement from yarn wholly formed in the territory of one or more of the parties to the Agreement.
Based on the information provided in your submission, the jacket at issue is not wholly obtained or produced in the territories of the parties to the Agreement. The Canadian produced knit tricot fabric for the chin guard and the knit tricot fabric used to line the front panels and manufactured in China from Taiwanese yarns preclude consideration of the garment as originating under GN 29(b)(i).
In considering GN 29(b)(ii), we apply GN 29(n), Chapter 61, Rule 3B cited above and the applicable chapter rules. Applying chapter rule 2, rule 3B applies only to the component that determines the tariff classification of the good and that component must satisfy the tariff change requirements set out in the rule for the good. Classification of the subject garment is accomplished by application of GRI 1, without consideration of the lining fabric or the narrow woven fabrics used as trim, as explained above. The remaining fabrics from which the garment is constructed, i.e., the fabrics forming the outershell or body of the garment, are of knit construction and are in chief weight of polyester. Chapter rule 2 does not apply in this case to restrict the application of rule 3B to a specific component in the subject garment, but it does serve to eliminate from consideration those components not considered in classifying the garment. Therefore rule 3B applies to all of the components of the garment with the exception of the lining fabric, chin guard fabric and the narrow woven fabrics used as trim. See HQ 561892, dated August 30, 2002, wherein a knit jersey constructed of 100 percent polyester knit originating and non-originating fabrics was determined to be ineligible for preferential tariff treatment under the North American Free Trade Agreement as classification of the garment was made pursuant to GRI 1 and General Note 12, Chapter 61, Chapter Rule 2 was deemed inapplicable.
GN 29(b)(ii)(A) requires that “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[.]” Based on the information provided, we have no nonoriginating material used in the production of the jacket at issue which is required to meet the tariff shift requirement set forth in the tariff shift rule set forth in Rule 3B. However, Rule 3B(b) requires any visible lining in the garment to meet the visible lining rule.
With regard to the knit fabric which lines the front panels, there is the question of whether such fabric is subject to chapter rule 1, the visible lining rule, or chapter rule 5, the pocketing bag fabric rule.
The pocketing bag fabric rule of Chapter Rule 5 applies to certain garments that contain a pocket or pockets and imposes certain requirements on the pocket bag fabric. We conclude from the language of the rule that the types of pockets with which the rule is concerned are pockets in which pocketing fabric is shaped to form a bag. These are generally pockets in which the pocket bag is not visible as it is normally in the interior of the garment. Therefore, pockets such as cargo pockets, patch pockets and typical shirt pockets would not be subject to the rule. An example of the type of pockets that would be subject to the rule, i.e., pockets consisting of “bags”, would be typical dress trouser pockets and dress coat pockets. The fabric at issue appears in the main body of the garment. Although the fabric serves to allow for front pockets at the waist and the material is sewn into the interior of the garment, the fabric does not form a pocket “bag.” As such, it is not subject to Chapter Rule 5.
The visible lining subject to the visible lining rule is described in Chapter Rule 2 as “the visible lining fabric in the main body of the garment, excluding sleeves, which covers the largest surface area, and shall not apply to removable linings.” “Lining” is defined as”
a material that lines or that is used to line especially the inner surface of something (as a garment). Merriam-Webster’s Online Dictionary at www.merriam-webster.com/dictionary/lining.
a material or substance that covers the inside surface of something. Cambridge Dictionaries Online at dictionary.cambridge.org.
Cloth partly or entirely covering inside surface of garment, forming inside finish. . . . A Dictionary of Costume and Fashion by Mary Brooks Picken, at 214.
A generic term for fabrics used to cover inner surfaces, especially when the inner face employs different material that the outer surface. . . . Fairchild’s Dictionary of Textiles, Ed. by Dr. Isabel B. Wingate, at 338. See also, Dictionary of Fiber & Textile Technology at 89.
The fabric at issue appears in the main body of the garment and lines a significant portion of each front panel. Although this lining does not cover the entire main body of the garment, it is not required to do so in order to be subject to Chapter Rule 1. See HQ 957572, dated April 3, 1995 (lining fabric appearing only in the yoke of a jacket subject to the visible lining rule). The fabric lining of each front panel meets the definitions for lining set forth above and also serves a function of most linings in outerwear jackets in that it provides an added layer of material to provide additional warmth and protection against the elements. Therefore, we find that the partial fabric lining of each front panel is subject to Chapter Rule 1, i.e., the visible lining rule.
As the fabric subject to the visible lining rule, i.e. Chapter Rule 1 of Chapter 61, GN 29(n), does not meet the requirements of the rule, the jacket at issue does not qualify for preferential treatment as an originating good under the DR-CAFTA.
If the interior fabric of the front panels is originating fabric, then the garment will qualify for preferential treatment as an originating good under the DR-CAFTA.
HOLDING:
Style OL3342, a women’s polyester knit jacket, is classified in subheading 6102.30.2010, HTSUSA, which provides for, among other things, women’s knit anoraks, windbreakers and similar articles, of man-made fibers, not containing 25 percent or more by weight of leather and not containing 23 percent or more by weight of wool or fine animal hair. Style OL3342 fails to meet the requirements for eligibility for preferential tariff treatment under the DR-CAFTA and is therefore subject to duty at the Normal Trade Relations rate of 28.2 percent ad valorem. However, if the interior fabric of the front panels is originating fabric, then the jacket will be eligible for preferential tariff treatment under the DR-CAFTA provided all other applicable requirements of GN 29 and the CBP regulations, 19 CFR §§ 10.581 through 10.625, are met.
Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on the Internet at www.usits.gov/tata/hts/. A copy of this ruling letter should be attached to the entry documents filed at the time the goods are 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,
Monika R. Brenner, Chief
Valuation and Special Classification Branch