CLA-2 OT:RR:CTF:TCM H122244 ASM
Port Director
U.S. Customs and Border Protection
909 S.E. 1st Avenue
Suite 980
Miami, FL 33131
RE: Application for Further Review of Protest No. 5201-10-100191;
Tariff Classification of Women’s Garments; DR-CAFTA
Dear Port Director:
This is in reference to a Protest and Application for Further Review (AFR), filed on behalf of American Apparel Co. (hereinafter “Protestant” or “American Apparel”), regarding Custom and Border Protection’s (CBP’s) classification of certain women’s garments under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) and whether the merchandise qualifies for preferential tariff treatment under the Dominican Republic-Central America-United States Free Trade Agreement (DR-CAFTA). Samples have been submitted and examined by this Office.
FACTS:
The items under consideration have been identified by the Protestant as follows:
Style 39787-05 consists of two pieces (top and pants) constructed from 63% polyester, 33% rayon, and 4% spandex woven fabric.
Styles 17714-08, 27714-08, and 37714-08 consist of two pieces (blouse and skirt) constructed of 97% polyester, 3% spandex woven fabric. Style numbers only differ by color.
Style 395390-95 consists of two pieces (top and skirt) constructed of 100% polyester woven fabric.
Style 395431-95 consists of two pieces (jacket and skirt) constructed of 97% polyester, 3% spandex woven fabric.
Style 391360-95 consists of two pieces (jacket and skirt) constructed of 100% polyester woven fabric.
Style 17714-08 consists of a woman’s jacket and skirt constructed from 97% polyester
and 3% spandex woven fabric. The jacket is composed of four or more panels and features ¾ length notched sleeves, a notched collar, two chest pockets with flaps, three self-fabric loops and tie belt, shoulder pads, and a full front opening secured by three round buttons that descends to just below the waist. The jacket’s back center interior seam has been encased with bias tape. The skirt features a 4 inch wide waistband that extends from front to back with two shaping darts in back, a center back zipper, and a center back vent opening at the hem.
Style 395431-95 consists of a woman’s jacket and skirt constructed from 97% polyester and 3% spandex woven fabric. The jacket is composed of four or more panels and features long folded notched sleeves, a collar, shoulder pads, a partial lining at the yoke of the collar, and a front opening secured by a snap closure and three large round buttons that end at waist level. The jacket has a center pleat in the back which further accentuates the “swing” styling. The skirt features a hook and eye closure, a center back zipper, and a center back vent opening at the hem.
Style 391360-95 consists of a woman’s jacket and skirt constructed from 100% polyester woven fabric. The jacket is composed of four or more panels and features short sleeves, a notched collar, shoulder pads, a partial lining in back at the yoke of the collar, two faux pockets below the waist with flaps, and a full front opening secured by four buttons. There is a fabric piping detail at the top seam of each pocket and at the back of the collar and four round buttons which descend below the waist. The skirt features a 3 inch wide waistband at the front with piping at the lower edge and three front pleats at the bottom hem. The skirt also has a hook and eye closure and center back zipper.
There is no sample available for Styles 27714-08, 37714-08 and 395390-95. However, Protestant submitted Style 195390-95 for our consideration in place of those Style Numbers.
While no sample was submitted for Style 39787-05, we recognize that CBP has already issued
New York Ruling Letter (NY) N076175, dated September 25, 2009, to American Apparel, which classified Style 39785-05 in subheading 6204.13.2010, HTSUS.
Style 395390-95 consists of a woman’s jacket and skirt constructed from 100% polyester woven fabric. The jacket is composed of four or more panels and features ¾ length folded notched sleeves, a notched collar, shoulder pads, a partial lining at the yoke of the collar, and a full front opening secured by three buttons and a snap. The skirt features a waistband with a hook and eye closure, a center back zipper and center pleats at the bottom.
American Apparel is a U.S. importer of wearing apparel, including women’s suits, skirts, pants, jackets, and dresses. With respect to the articles now at issue, American Apparel asserts that the merchandise was imported from Guatemala as women’s two piece garments consisting of jackets and skirts, or jackets and pants (described in detail above). The subject merchandise was entered on June 22, 2009, and classified as “women’s suits” of synthetic fibers in subheading 6204.13.2010, HTSUS. American Apparel claimed duty-free treatment for the subject merchandise under Chapter 62, Rule 16C or DR-CAFTA.
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On January 11, 2010, CBP issued a Notice of Action finding that the subject merchandise did not qualify for preferential tariff treatment under DR-CAFTA. Specifically, CBP noted that the women’s garments were entered incorrectly as “women’s suits”. It was further noted that the fabric used in the manufacture of the garments was made in China and thus the garments were not entitled to duty free entry pursuant to the DR-CAFTA. On January 29, 2010, CBP liquidated the subject merchandise in accordance with the Notice of Action as separate “women’s skirts” and “women’s trousers” of heading 6204, HTSUS, and “women’s blouses” of heading 6206, HTSUS.
American Apparel timely filed this Protest on May 10, 2010. Protestant asserted that the merchandise was eligible for duty free treatment under the DR-CAFTA.
ISSUES:
Whether the merchandise is classified as a suit of subheading 6204.13.20, HTSUS, or as separate articles of other subheadings in Chapter 62.
Whether the merchandise qualifies for preferential tariff treatment under the DR-CAFTA?
LAW AND ANALYSIS:
Classification
Initially, we note that this matter is protestable under 19 U.S.C. §1514(a)(2) as a decision on classification. The protest was timely filed within 180 days of liquidation. (Miscellaneous Trade and Technical Corrections Act of 2004, Pub.L. 108-429,
§ 2103(2)(B)(ii), (iii) (codified as amended at 19 U.S.C. § 1514(c)(3) (2006)).
Protestant asserts that further review of the protest is warranted pursuant to 19 CFR §§174.24(b) on the grounds that this matter involves question of law or fact which have not previously been ruled upon by the Commissioner of Customs or the Customs Court.
Classification under the Harmonized Tariff Schedule of the United States (HTSUS) is made in accordance with the General Rules of Interpretation (GRI). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative Section or Chapter Notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRI may then be applied.
The Protestant asserts that the subject merchandise should be classified as 6204.13.2010, Harmonized Tariff Schedule of the United States (HTSUS), as women’s suits of synthetic material. The Protestant also maintains that the merchandise is eligible for preferential tariff treatment under CAFTA-DR.
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The following provisions are under consideration in classifying the subject article:
6204 Women’s or girls’suits, ensembles, suit-type jackets, blazers, dresses, skirts, divided
skirts, trousers, bib and brace overalls, breeches and shorts (other than swimwear)
Suits:
6204.13 Of synthetic fibers:
6204.13.20 Other
6204.13.2010 Women’s
* * *
6204 Women’s or girls’suits, ensembles, suit-type jackets, blazers, dresses, skirts, divided
skirts, trousers, bib and brace overalls, breeches and shorts (other than swimwear)
Skirts and divided skirts:
6204.53 Of synthetic fibers:
Other:
Other
6204.53.3010 Women’s
* * *
6204 Women’s or girls’suits, ensembles, suit-type jackets, blazers, dresses, skirts, divided
skirts, trousers, bib and brace overalls, breeches and shorts (other than swimwear)
Trousers, bib and brace overalls, breeches and shorts:
6204.63 Of synthetic fibers:
Other:
Other:
Other:
Other:
6204.63.35 Other
Trousers and breeches
6204.63.3510 Women’s
* * *
6206 Women’s or girls’ blouses, shirts and shirt-blouses:
6206.40 Of many-made fibers:
Other:
6206.40.30 Other
Other:
6206.40.3030 Women’s
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Chapter 62, Note 3(a) sets forth the definition of a “suit”, in relevant part, as follows:
3. For the purposes of headings 6203 and 6204:
The term "suit" means a set of garments composed of two or three pieces made up, in
respect of their outer surface, in identical fabric and comprising:
- one suit coat or jacket the outer shell of which, exclusive of sleeves, consists of four or
more panels, designed to cover the upper part of the body, possibly with a tailored waistcoat in addition whose front is made from the same fabric as the outer
surface of the other components of the set and whose back is made from the same
fabric as the lining of the suit coat or jacket; and
- one garment designed to cover the lower part of the body and consisting of trousers,
breeches or shorts (other than swimwear), a skirt or a divided skirt, having neither
braces nor bibs.
All of the components of a "suit" must be of the same fabric construction, color and
composition; they must also be of the same style and of corresponding or compatible
size. However, these components may have piping (a strip of fabric sewn into the seam) in a different fabric.
The Harmonized Commodity Description and Coding System Explanatory Notes (“ENs”) constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).
The EN to heading 6204 states that the provisions of the EN to heading 6104, HTSUS, which covers women’s knitted or crocheted suits, apply mutatis mutandis to the articles of heading 6204, HTSUS. The EN to heading 6104, HTSUS, states that the provisions of the EN to heading 6103, HTSUS, which covers men’s knitted or crocheted suits, apply mutatis mutandis to the articles of that heading.
The EN for 6103, in relevant part provides:
The “suit coat or jacket” designed to cover the upper part of the body has a full frontal opening without a closure or with a closure other than a slide fastener (zipper). It does not extend below the mid-thigh area and is not for wear over another coat, jacket or blazer;
The “panels” (at least two in front and two at the back) making up the outer shell of the suit coat or jacket must be sewn together lengthwise. For this purpose the term “panels” does not include sleeves, facings or collar, if any;
The Apparel Terminology under the HTSUS (ICP, June 2008), defines suits (6103, 6104, 6203, 6204) as sets of garments consisting of:
suit coat or jacket and one pair of trousers, breeches, or shorts, a skirt or divided skirt, having neither braces nor bibs or
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suit coat or jacket, vest and one pair of trousers, breeches, or shorts, a skirt or divided skirt, having neither braces nor bibs. The front of the vest is made from the same fabric as the outer surface of the other components and the back is made from the same fabric as the lining of the suit coat or jacket.
The upper body garments of Styles 195390-95, 395431-95, and 391360-95, are designed to be worn over blouses or shirts. The upper body garment of style 17714-08 has a closer fit than the other styles. However, according to Headquarters Ruling Letter (HQ) 953237, dated February 2, 1993, classification as a jacket does not require that the garment be designed so that it can only be worn with a blouse or shirt. It only requires that when worn alone the garment should retain the appearance of a jacket.
The Port found that the jackets of all the styles at issue “lack tailoring” which is a general characteristic of a suit. In HQ 952842, dated January 7, 1993, CBP refers to the quantity of tailoring required to meet the definition of suit-type jacket as set forth in the Textile Category Guidelines, C.I.E. 13/88, November 23, 1988 (hereinafter “Guidelines”). The term “tailored” is frequently misconstrued to encompass only those garments which are constructed so as to fit the contours of the body. While this is an accurate definition, it is not all-inclusive. The Reader’s digest Complete Guide to Sewing, May 1985, page 360, states “(t)ailoring is just a refinement of standard sewing procedures, aimed at building permanent shape into the garment”. We note that these procedures may vary from basic to more complex construction techniques such as multiple darts and princess seams that provide additional shaping and structure to the garment.
Each of the four styles consists of a jacket and skirt of the same fabric construction, color, size, style, and composition. The coat or jacket portion of each suit is tailored in that they are all sewn to a permanent shape of the garment. The jackets all have sleeves, and consist of four or more panels. The jackets have full-front openings with buttoned closures, are designed to cover the upper part of the body, and do not extend below the mid-thigh area. The Port claimed that the jackets are not lined, i.e., the partial linings do not cover an entire panel or part of the good. However, as we noted in HQ 954127, dated August 26, 1993, this doesn’t preclude classification of the garment as a “suit-type” jacket when an “unlined” garment has retained the appearance of “suit-type” jackets and met at least three of the enumerated features as set forth in the “Guidelines”.1
____________________
1 The reference to “Guidelines” refers to the “Guidelines for the Reporting of Imported Products in Various Textile and Apparel Categories”, C.I.E., 13/88, November 23, 1988. Since neither the legal notes to the HTSUSA nor the ENs address the issue of whether a garment is classifiable as a jacket as opposed to a shirt, we look to the “Guidelines” for assistance in differentiating jackets from shirts. See also, the CBP Informed Compliance Publication (ICP), “Classification: Apparel Terminology Under the HTSUS”, dated June 2008, which states at pages 20-21: “All components of the suit are of identical fabric as to construction, style, color, and composition, and of corresponding or compatible size (vests and trousers of contrasting fabrics or colors are not included as parts of suits). One or more of the components may have piping (a strip of fabric sewn into the seam) which is of a different fabric composition than the “suit” components. The coat or jacket is tailored and consists of 4 or more panels, two in front and two in back, exclusive of sleeves, sewn together lengthwise; it has a full-frontal opening without a closure or with a closure (without zippers); sleeves of any length; and may be designed for wear over a shirt or blouse but not over another coat, jacket, or blazer. It may be waist length or extend below the waist, but does not extend below the mid-thigh area.”
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In HQ 951755, dated October 9, 1992, CBP cited to “The Modern Textile and Apparel Dictionary”, George Linton, page 567, noting that the concept of a tailored garment is broken down into two separate aspects, i.e., those of tailored styling and those of tailored workmanship. It was further noted that tailored styling referred to apparel that is form fitting with such basic style lines that are used in men’s business suits. In addition it was noted that tailored workmanship referred to the precision and finish of the seams and the stitching. Technical aspects of construction were also considered such as the spacing and size of the stitches, finishing of the seams so that no raw edges were showing, and the pressing of the seams to ensure a smooth silhouette.
In view of the foregoing, and based on our examination of the samples provided, the garments at issue are “tailored” consistent with the criteria set forth in prior CBP Ruling Letters. Therefore, it is our decision that Styles 17714-08, 395431-95, 391360-95; Style 39787-05 (based on NY N076175, dated September 25, 2009); and Styles 27714-08, 37714-08 and 395390-95 (to the extent that Style 195390-95 accurately represents a comparable sample), are each correctly classified in subheading 6204.13.2010, HTSUS, which provides for Women’s or girls’ suits, ensembles, suit-type jackets, blazers, dresses, skirts, divided skirts, trousers, bib and brace overalls, breeches and shorts (other than swimwear): Suits: Of synthetic fibers: Other, Women’s”.
DR-CAFTA Eligibility
The DR-CAFTA was signed on August 5, 2004, and includes as parties the United States, the Dominican Republic, El Salvador, Guatemala, Honduras, Nicaragua, and Costa Rica. The provisions of the DR-CAFTA were adopted by the U.S. in the Dominican Republic Central America Free Trade Agreement Implementation Act, Public Law 109-53 (2005). General Note 29, of the Harmonized Tariff Schedule of the United States (“HTSUS”) sets forth the rules of origin for the DR-CAFTA. Regulations for the DR-CAFTA are set forth in 73 FR 33673, dated June 13, 2008, and are found at 19 CFR 10.581 et seq.
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) of this note, that are imported into the customs territory of the United States and entered under a provision –
* * *
(B) 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)[.] 7
GN 29(b), HTSUS, (19 U.S.C. § 1202) sets forth criteria for determining whether a good (other than agricultural goods provided for in GN 29(a)9(ii)) is an originating good for purposes of the DR-CAFTA. GN 29(b) states, in pertinent part, as follows:
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 the note if –
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
the good was produced entirely in the territory of one or more of the parties to the Agreement exclusively from originating materials.
For goods classified in Chapter 62, General Note 29(n), Chapter rule 2 states in
pertinent part:
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.
In the instant case, each of the subject goods has been constructed of synthetic fibers. As we have already noted, Styles 17714-08, 27714-08, 37714-08, 395431-95 395390-95, and 391360-95, are classified as women’s suits in subheading 6204.13.2010, HTSUSA.
Goods classified in subheading 6204.13.20, General Note 29, Chapter 62, 16C,
requires:
A change to tariff item 6204.13.20 from any other chapter, provided that 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.
Therefore, the subject merchandise must be cut and sewn or otherwise assembled in the territory of one or more of the parties to the Agreement to qualify for DR-CAFTA preferential treatment. If the garments are not cut and sewn or otherwise assembled in the territory of one of the parties to the Agreement, they will not qualify for preferential treatment.
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In addition, GN 29(d)(i) states:
A textile or apparel good containing elastomeric yarns in the component of the good that
determines the tariff classification of the good shall be considered to be an originating good only if
such yarns are wholly formed in the territory of a party to the Agreement.
Since Styles 17714-08, 27714-08, 37714-08, and 395431-95, each contain spandex, they may only qualify for DR-CAFTA preferential treatment if the spandex yarns contained in the fabric are wholly formed in the territory of a party to the Agreement. If the elastomeric yarns are not wholly formed in the territory of a party to the Agreement, these Styles will not qualify for DR-CAFTA preferential treatment.
In the Notice of Action, CBP advised the Protestant that the DR-CAFTA certifications were unsigned and deemed invalid. See 19 C.F.R. 10.584(b) which sets forth specific requirements for the “Responsible official or agent” who must sign and date the requisite certification language as provided for in 19 C.F.R. 10.584(a). Therefore, CBP requested that the Importer submit valid DR-CAFTA certifications for all entries. However, the Protestant has failed to provide the signed DR-CAFTA certifications. Moreover, Protestant has failed to provide specific evidence as to where the garments were cut and sewn and whether the elastomeric yarns are wholly formed in the territory of a party to the Agreement. Accordingly, preferential tariff treatment under the DR-CAFTA cannot be verified for any of the Styles set forth herein. We agree with the CBP Port of Miami that preferential tariff treatment under the DR-CAFTA should be denied.
HOLDING:
You are instructed to ALLOW the Protest, in part, with respect to the classification of the styles which have been set forth in the paragraph below. You are also instructed to DENY the Protest, in part, with respect to the granting of preferential tariff treatment under the DR-CAFTA with respect to the styles which have been set forth in the paragraph below.
In view of the foregoing, and based on our examination of the samples provided, it is our decision that Styles 17714-08, 395431-95, 391360-95; Style 39787-05 (based on NY N076175, dated September 25, 2009); and Styles 27714-08, 37714-08 and 395390-95 (to the extent that Style 195390-95 accurately represents a comparable sample), are each correctly classified in subheading 6204.13.2010, HTSUS, which provides for Women’s or girls’ suits, ensembles, suit-type jackets, blazers, dresses, skirts, divided skirts, trousers, bib and brace overalls, breeches and shorts (other than swimwear): Suits: Of synthetic fibers: Other, Women’s”. The general column one rate of duty at the time of entry was percent 35.3 cents/kg + 25.9% ad valorem.
In accordance with Sections IV and VI of the CBP Protest/Petition Processing Handbook (HB 3500-08A, December 2007, pp. 24 and 26), you are to mail this decision, together with the CBP Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing the decision.
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Sixty days from the date of the decision, the Office of International Trade, Regulations and Rulings, will make the decision available to CBP personnel, and to the public on the CBP Home Page on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.
Sincerely,
Myles B. Harmon, Director
Commercial and Trade Facilitation Division
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