OT:RR:CTF:VS H250948 CMR
U.S. Customs & Border Protection
Protest & Control
1100 Raymond Boulevard
Suite 402
Newark, NJ 07102
RE: Application for Further Review of Protest 4601-13-101177; DR-CAFTA; Short Supply; Coats of Wool Blend Fabrics
Dear Port Director:
This is in response to the Application for Further Review (AFR) of Protest 4601-13-101177, filed with your port on August 5, 2013. The four entries which are the subject of the protest were liquidated on February 8, 2013; thus, the protest was timely filed. Further review was sought pursuant to 19 CFR § 174.24(a) and § 174.24(b) with justification provided. Further review was properly approved.
FACTS:
Certain wool blend coats were entered through your port claiming preferential tariff treatment under the Dominican Republic – Central America – United States Free Trade Agreement (DR-CAFTA). The coats were entered under subheading 9822.05.01, Harmonized Tariff Schedule of the United States as DR-CAFTA originating goods utilizing fabrics designated as in short supply in U.S. Note 20(a)(93), Subchapter XXII, Chapter 98, and as otherwise meeting the terms of U.S. Note 20(a).
The protestant provided entry documents and coat samples for the four entries at issue. The samples were examined by the Customs and Border Protection (CBP) Office of Laboratories and Scientific Services (hereinafter, CBP lab). Based on the CBP lab reports, it was determined that the wool blend coats were not of the designated short supply fabric and thus, were ineligible for preferential tariff treatment as originating goods under the DR-CAFTA.
The CBP lab reports confirmed that the wool blend fabrics from which the outershells of the coats were made met the criteria for the short supply fabric designated in U.S. Note 20(a)(93) with regard to all of the criteria with the exception of certain of the finishing operations. With regard to all of the styles examined, the CBP lab reports indicated it could not be confirmed if the woven fabrics had been rolled. In addition, for all styles, the reports indicated that in the lab’s opinion, the wool blend coat fabrics had not been vaporized. The CBP lab reports further indicate that the wool blend fabric of style MW1AW994 also had not been sheared; the wool blend fabric of style JW1MQ192 had not been sheared, fulled or dyed; the wool blend fabric of style JW1WJ496 had not been fulled; and, the wool blend fabric of style JW1WQ792 had not been fulled or dyed.
ISSUE:
Were the wool blend coats in the entries 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:
* * *
(93) Certain Wool Blend Coating Fabrics
HTSUS Classifications: 5111.30.9000, 5515.13.0510, 5515.22.0510, 5515.99.0510, 5516.32.0510, 5516.33.0510
Fiber Content: 20 percent of more of man-made staple fibers and 36 to 80 percent of wool, cashmere or camelhair fiber (or any combination thereof), with a three percent fiber content allowance.
Yarn Size: Various
Fabric Weight: 357 to 485 grams/square meter
Colors: Various
Finishing: Carbonized, fulled, dried, dyed, brushed, sheared, vaporized, rolled
Counsel argues that “[v]aporization is a fabric making process whereby vapor (steam) is applied to the fabric in order to ‘stabilize’ it. . . In the absence of vaporization, wool and wool-blend fabrics can shrink and lose shape prior to, or during, use in manufacture (i.e., fabric cutting, component assembly, etc.).” Counsel explains that vaporization primarily involves applying steam to fabric.
In Textile Fabrics by Isabel B. Wingate, A.B., M.S., Third Ed. (With Revisions) (Prentice-Hall, Inc., 1952), at 316, we find:
Steaming. To shrink wool in both length and width, as well as to condition the fabric (make it more compact), the cloth is placed over a steam box which has a perforated copper cover. Steam is then forced through the fabric. This is not a method of shrinkage control, although the process does shorten the fabric in length and make it narrower. Steaming is applied to silks and to spun rayons as well as to wool.
Further, in Fairchild’s Dictionary of Textiles, (Fairchild’s Publications, Inc., New York, 1970) at 558, we find:
Steaming 1. A finishing process which partially shrinks and conditions the fabric when applied to woolens after drying. After the cloth has been decated, this process takes off unsightly glaze. The steam is passed through the cloth by running it over a steam box with perforated copper cover. Silk and spun rayons may be steamed. Steaming accompanies the final pressing process in finishing woolens and worsteds. 2. A process in printing to stabilize the colors.
Finally, in Understanding Fabrics: From Fiber to Finished Cloth, by Debbie Ann Gioello (Fairchild Publications, New York, 1982), at 162, “Steaming Operation” is described as:
Steaming processes utilizing steaming chambers are used prior to, in addition to, or after various stages of finishing. During the steaming operation the fabric is fed over a steam box containing a perforated cover, then the steam is forced through the fabric.
May be applied to woolen fabrics after drying to partially shrink and condition the fabric.
Accompanies the final pressing process for woolen and worsted fabrics.
Reduces undesired glaze imparted by decating process
Stabilizes the colors of dyes after printing and dyeing processes
Vapor and steam are synonymous terms. Although we did not find a definition of vaporization which was directly on point, we did find at Dictionary.com Unabridged. Random House, Inc. http://dictionary.reference.com/browse/vaporization (accessed: March 18, 2014), the following:
vaporization
noun
1. the act of vaporizing.
2. the state of being vaporized.
3. the rapid change of water into steam, especially in a boiler.
4. Medicine/Medical . a vapor therapy.
Based on the above, CBP believes it is appropriate to look to the information on steaming of wool fabrics in considering the “vaporization” process in this case. The CBP lab report looked only at the vaporization process as it applies to disperse dyes used in printing of fabrics. We believe this was in error. The description of the short supply fabric at issue is of dyed fabric, not of printed fabric. Yet, the description of finishing operations includes vaporizing. We can only conclude this refers to the common steaming operation which is performed on wool fabrics and for which there is no apparent method of testing to confirm the operation was performed.
Although CBP cannot test whether the fabric was vaporized, documentation has been submitted by the importer to support the claim that the operation was indeed performed on the fabric prior to cutting and assembly of the garments made from the fabric. The documentation includes not only information regarding the machinery used in processing the wool blend fabric, but also affidavits from individuals with direct knowledge of the processing. The owner of one of the textile mills supplying fabric described the various finishing processes, including “vaporizing.” With regard to vaporizing, the mill owner stated:
“Vaporizing” is the use of open steam, meaning that vapor is applied in an open environment. This process, which is performed before the fabric is rolled, stabilizes the fabric. In particular, it minimizes shrinkage in subsequent manufacturing or processing of the fabric (e.g., cutting the fabric into components, assembly the fabric components into finished garments, etc.).
The vaporization of the [ ] fabric at [the fabric mill] was performed with the use of a CO.MA.R.SIRIO vaporization machine. The SIRIO machine is a next generation vaporizing machine incorporating the functionality of two other CO.MA.R. vaporizing machines (the VAPORAMA and the VAPORSPEED). Photographs of the SIRIOS vaporizing machine are attached as Exhibit B-1 and product literature from the manufacturer of the SIRIO machine is included in Exhibit B-2.
The manager of the other fabric mill which supplied wool blend fabric for the coats at issue also submitted an affidavit in which he addressed “vaporizing.” His description of the process is identical to the above, but the machinery was described as “a WPF-900 high efficiency vaporizing machine manufactured by Wuxi Weixing Dyeing and Finishing Equipment Factory.” Photographs of the machine were submitted. In addition, instructions from the manual for operating the machine were submitted.
Based on the submitted documentation, this office is satisfied that the wool blend fabrics used in the production of the wool blend coats at issue were subjected to vaporization.
With regard to “shearing”, the wool blend fabrics of two styles were found not to be sheared by the CBP lab. With regard to shearing, the lab report stated:
The object of shearing is either [to] remove the protruding fibers from the fabric surface or to even out or level the fiber pile or nap which have previously been raised.
Under stereo-microscopic examination the fabric surface is not even. Fiber height is uneven. The fibers have not been cut to a uniform height but they are bending in all directions unevenly.
Counsel argues that the wool blend coat fabrics were sheared by a process “specifically designed to result in a non-uniform fiber length in order to achieve complete and natural coverage of the underlying fabric weave, a full appearance, and soft touch.” He described a shearing machine as operating similar to a lawn mower to control the length of the fabric pile or nap and submitted reference materials to support this view. In addition to the reference materials submitted by counsel, we found in Essentials of Textiles, 3rd Edition, by Marjory L. Joseph (Holt, Rinehart and Winston, 1976), at 258, the following relevant information:
Shearing is a mechanical process applied to some fabrics either as part of preparation following singeing or as a part of the evening of pile fabrics. Shearing involves cutting (shearing) off undesirable surface fibers or pile (nap) fibers that extend beyond the length desired.
The lab report’s own statement of the object of shearing allows for differences in the lengths of the fibers because one purpose of shearing, as stated therein, is “to remove protruding fibers from the fabric surface.” As such, this does not require all fibers to protrude equally, just not to protrude beyond the set distance determined by the shearing process. This makes it difficult for CBP to determine whether shearing has occurred on a fabric. However, affidavits and information regarding the specific machinery used in the shearing process were submitted to support the claim that the wool blend fabrics used in the production of the wool blend coats at issue were sheared as required by the description of the short supply fabric in U.S. Note 20(a)(93), Subchapter XXII, Chapter 98.
As to the fulling of the wool blend fabrics used to make the wool blend coats at issue, the CBP lab opined that the fabrics of three of the coats at issue had not been fulled. Specifically, the lab reports stated with regard to all three fabrics that “[u]nder stereo-microscopic examination the sample is not compact like a felt.” For two of the fabrics, the lab reports indicated that the weave structure was clearly visible on the back sides of the fabrics and that the back sides of the fabrics were harsh and stiff. For the third fabric, the report simply indicated that the weave was clearly visible. For two fabrics, the lab reports indicated that the face of the fabrics had been napped or brushed.
Counsel submitted reference materials on fulling of wool fabrics and pointed out that the amount of fulling depends upon the desired effect. “Some wool fabrics, such as meltons (used in certain coats, like the classic Varsity Jackets), are ‘heavily fulled’; whereas other fabrics, such as the worsted and semi worsted short supply fabrics under review, are ‘very lightly fulled.’” See Counsel’s Memorandum in Support of Protest and Application for Further Review at 9. Based on various reference sources submitted by counsel and reviewed by this office, we agree that fulling of wool fabrics is done to varying degrees. As counsel points out, fulling need not obscure the underlying weave of the fabric. As stated in America’s Fabrics, Origin and History, Manufacture, Characteristics and Uses by Zelma Bendure and Gladys Pfeiffer (The MacMillan Company, New York, 1946), submitted by counsel: “All worsted fabrics are fulled and many woolens are given a slight fulling to give body and softness to the fabric. . . .The degree of fulling determines the degree of close contact or shrinkage.”
We note the lab observed a harshness and stiffness to the back sides of two of the fabrics. In light of the variability of the degree of fulling which may occur in the processing of wool blend fabrics, the affidavits stating that fulling of the fabrics did occur and identifying the machines used in the production operations, and weighing the lab’s observations against this information, and considering the court cases cited by counsel which weigh against reliance on visible observation alone, i.e., Libas Ltd. v. United States, 193 F.3d 1361 (Fed. Cir. 1999) and United States v. Qiao Chu et. al., Case No. 3:11-cr-286(S3)-J-34TEM (U.S. Dist. Ct. Jacksonville Div.)(Nov. 7, 2012), we accept the importer’s claim that the wool blend fabrics were fulled.
Finally, for the wool blend fabrics of two of the coats at issue, the CBP lab determined that the fabrics had not been dyed. With regard to these two wool blend fabrics, the lab reports stated, respectively:
Dyed: The warp and filling yarns of the woven fabric are of the same grey color. The grey colored yarns are composed of black wool fibers mixed with white wool and nylon fibers. This indicates that wool was dyed in black and white colors in fiber form. The nylon was dyed in white color in fiber form. Later the white and black wool fibers were mixed with white nylon fibers and spun in to wool/nylon blend grey yarn.
And,
Dyed: The warp yarn consists of red nylon fibers and black wool fibers. The filling yarn is composed of red and black nylon and wool fibers. This indicates that the dyeing process was carried out either in fiber dyeing form or in the form of yarn dyeing. The fabric dyeing was not carried out.
In the short supply provision at issue, dyeing is listed among the finishing operations. The term “dyed” is not qualified in any way. Protestant’s counsel argues
that to meet the finishing requirement, the dyeing may occur at any stage of production. He argues the lab erred in reading in a requirement that the fabric be piece-dyed.
Sixty-one short supply provisions specify “piece-dyed” in the list of finishing operations. Therefore, when dyeing is required to occur at a specific stage of the production process, be it at the fabric stage, i.e., piece-dyeing, or at the yarn stage, i.e., yarn-dyed, such finishing requirement is specified. In this case, while dyeing is required, there is no requirement as to the stage in production during which the dyeing is to occur. Accordingly, we find that wool blend coats at issue qualify for DR-CAFTA preferential tariff treatment as goods classifiable in heading 9822.05.01, HTSUS.
HOLDING:
Protest 4601-13-101177 should be allowed. 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