OT:RR:CTF:VS H235548 CMR
U.S. Customs and Border Protection
Assistant Port Director
6601 NW 25th Street
Room 273
Miami, FL 33122-3215
RE: Application for Further Review and Protest #5201-12-100550; Eligibility of certain goods under DR-CAFTA Short Supply Provision
Dear Ms. Amato:
This is in response to the Application for Further Review (AFR) and Protest #5201-12-100550, timely filed on August 21, 2012, by Alston & Bird, on behalf of Ben Wachter Associates, against the liquidation of an entry in which duties were assessed on one style of men’s shirts for which preferential tariff treatment under the U.S. – Dominican Republic – Central America Free Trade Agreement (DR-CAFTA) was claimed. You forwarded the AFR and Protest to this office for our response. The AFR was properly sought and approved pursuant to 19 CFR 174.24(b).
A meeting was held with counsel on August 14, 2013. We have taken into consideration the discussion and arguments presented during that meeting in reaching our decision set forth below.
FACTS:
The garments at issue are described as men’s cotton chamois shirts, style OMT03-002. The shirts were entered under subheading 9822.05.01, Harmonized Tariff Schedule of the United States (HTSUS), as garments made up of fabric designated as not available in commercial quantities (also known as “short supply”) provided for in U.S. Note 20(a), Subchapter XXII, Chapter 98, and as otherwise meeting the terms of U.S. Note 20(a). The Certificate of Origin for style OMT03-002, exhibit D, indicates the garment was made up of fabric described in U.S. Note 20(a)(57).
On July 21, 2011, the port issued a Request for Information (CBP Form 28) to Ben Wachter Associates requesting the number and description of the short supply fabric used in the manufacture of garments entered under subheading 9822.05.01, HTSUS. The port also requested any laboratory or factory inspection reports completed to confirm that the fabric is a “short supply” fabric, along with specification sheets from the producer of the fabric. It also requested affidavits from the fabric producer(s). The Certificate of Origin referenced above was submitted in response to the port’s request. The port’s request involved numerous styles. We note counsel’s exhibit F contains copies of seven Certificates of Origin for various garments, including the style at issue, indicating preference is based on the use of DR-CAFTA short supply designation and qualification under U.S. Note 20(a). However, these certificates fail to identify the specific provision within U.S. Note 20(a) which identifies the specific short supply designation.
Counsel’s exhibit D is a Certificate of Origin for only the style at issue. It does identify the preference claim as based on meeting U.S. Note 20(a)(57). This certificate was executed on December 1, 2011 for the blanket period January 1, 2010 through December 31, 2010. It appears that this document is a correction of the certificate in exhibit F which covers the style at issue, along with a men’s pajama set and men’s sleep pants which was executed on August 14, 2010 for the same blanket period, but which failed to indicate the specific short supply designation under which preference within U.S. Note 20(a) was being claimed.
In a footnote, counsel submits that the short supply material at issue is listed as item 57 based on the list on the Committee for the Implementation of Textile Agreements’ (CITA’s) website. We note the website is actually that of the Office of Textiles and Apparel (OTEXA) of the Department of Commerce. Per counsel, the same short supply material is listed in U.S. Note 20(a) at item 55. The descriptions match with the exception that the description which appears in the tariff schedule includes an overall average yarn number.
On April 5, 2012, the port issued a Notice of Action (CBP Form 29) rate advancing style OMT03-002 and stating that it did not meet the requirements of the DR-CAFTA short supply provision for item 57. The port also issued a positive DR-CAFTA determination for two other styles. The negative determination for style OMT03-002 was based on a CBP laboratory analysis of a sample garment. The CBP laboratory report for style OMT03-002 indicated:
. . . The fabric of the shirt is plain woven and wholly of cotton. The fabric is dyed and napped on both sides. The warp yarn number is 27 metric and the filling yarn number is 9 metric. The warp yarns are ring spun and the filling yarns are open end spun.
The CBP laboratory was unable to determine if the sample had been sanforized. In addition, the CBP laboratory found the number of warp ends per centimeter to be 20.7 (1-ply); filling picks per centimeter to be 13.4 (1-ply); single yarns per square centimeter to be 34.1 and the average yarn number to be 13. The CBP laboratory found the fabric to weigh 252.7 grams per square meter.
ISSUE:
Were the men’s shirts in the entry at issue properly denied preferential tariff treatment under the DR-CAFTA for failure to meet the requirements for classification in heading 9822.05.01, HTSUS?
LAW AND ANALYSIS:
The DR-CAFTA 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.).
GN 29, HTSUS implements the DR-CAFTA. GN 29(b), subject to the provisions of subdivisions (c), (d), (m) and (n) of GN 29, sets forth the 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.
Subdivision (m), GN 29, provides at paragraph (viii)(B):
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—
(1) one or more fabrics listed in U.S. Note 20 to subchapter XXII of chapter 98;
. . . .
U.S. Note 20(a), Subchapter XXII, Chapter 98, provides, in relevant part:
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:
* * *
(55) Woven 100 percent cotton flannel fabric, piece dyed and napped on both sides, sanforized, weighing 254 g/m2, with 20 warp ends per cm of ring spun yarn of number 28.8 metric and 14.5 filling picks per cm of open-end spun yarn of number 8.46 metric and having 34.5 total threads per cm2, of an overall average yarn number of 27.9 metric, having a width of 160 cm cuttable, classified in subheading 5209.31.60;
In this case, counsel believes that the CBP laboratory report confirms that the fabric had all the physical characteristics of the fabric description for item number 57 on the DR-CAFTA short supply list maintained by CITA and posted on the OTEXA website. Item 57, on that list, is the same as item 55 listed under U.S. Note 20(a), Subchapter XXII, Chapter 98, HTSUS. Counsel believes the only discrepancy is the average yarn number and argues that the average yarn number in the short supply designation is a mathematical impossibility and should therefore be ignored.
CBP examines merchandise in its condition as imported. See Headquarters Ruling Letter (HQ) H185799, dated April 11, 2013; and, HQ H068277, dated December 30, 2010. We see no need to address counsel’s argument regarding the mathematical impossibility of the average yarn number in the designation as there are other deviations from the fabric requirements set forth in U.S. Note 20(a)(55), Subchapter XXII, Chapter 98, that are evident in the CBP laboratory report on the fabric of style OMT03-002. The weight of the short supply fabric is to be 254 grams per square meter. The tested fabric was found to be 252.7 grams per square meter. The short supply fabric is to have a warp yarn of 28.8 metric and a filling yarn of 8.46 metric. The tested fabric was found to have a warp yarn of 27 metric and a filling yarn of 9 metric. The short supply fabric is to have 20 warp ends per centimeter of ring-spun yarn and 14.5 filling picks per centimeter of open-end spun yarn. The tested fabric was found to have 20.7 warp ends per centimeter of ring-spun yarn and 13.4 filling picks per centimeter of open-end spun yarn. Finally, the short supply fabric is to have 34.5 total threads per square centimeter. The tested fabric was found to have 34.1 single yarns per square centimeter.
CBP is tasked with applying and enforcing the provisions of the tariff schedule. When the language of the tariff is precise and unambiguous, CBP has no authority to deviate from it. The tariff is precise and unambiguous in describing the requirements of the short supply fabric set forth in U.S. Note 20(a)(55). Due to the deviations in the tested fabric from the description of the short supply fabric set forth in the HTSUS, the port was correct in denying preferential tariff treatment under the DR-CAFTA for style OMT03-002.
HOLDING:
The protest should be denied. Style OMT03-002 does not qualify for classification in subheading 9822.05.01, HTSUS, and is not eligible for preferential tariff treatment under the DR-CAFTA.
In accordance with the Protest/Petition Processing Handbook (CIS 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 in accordance with this decision must be accomplished prior to mailing of the decision. Sixty days from the date of the decision, Regulations and
Rulings of the Office of International Trade 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