OT:RR:CTF:FTM H314966 TJS
Mr. Devan Heintz
ARC’TERYX Equipment
#100 – 2155 Dollarton Hwy
North Vancouver, BC, V7H 3B2
Canada
RE: USMCA Eligibility of a Men’s Jacket
Dear Ms. Heintz,
This is in response to your letter, dated September 16, 2020, in which you request a binding ruling, on behalf of Arc’teryx Equipment, concerning the eligibility of a men’s jacket for preferential tariff treatment under the United States-Mexico-Canada Agreement (“USMCA”). Your request, submitted as an electronic ruling request, was forwarded to this office from the National Commodity Specialist Division for review. Our ruling is set forth below.
FACTS:
The merchandise at issue is a men’s hip-length jacket, style “Alpha SV Jacket Men’s,” constructed from a Gore-Tex PRO three-layer fabric treated with Durable Water Repellent (DWR). The outer layer is a 100% nylon woven fabric, the middle layer is an expanded PTFE (polytetrafluoroethylene) membrane, and the inner layer is a micro grid backer. You state that the jacket is designed for severe alpine conditions.
The garment features a full front opening with a weatherproof zipper closure, a multi-adjustable, scuba-type hood, and long sleeves with hook and loop tabs for tightening around the wrists. The jacket contains three weatherproof zippered pockets, two on the chest and one on the left sleeve, and two internal pockets, one zippered and the other unsecured (dump pocket). The jacket also features sealed seams, articulated elbows, arm gussets, weatherproof pit zips, and an elastic draw cord inserted through a casing in the hem for tightening to the body. You state that the jacket will be manufactured (cut and sewn) in Canada. The country of origin of the jacket components is listed in the chart below:
Garment Component
Country of Origin
Outer Shell; Sleeve and Chest Pockets (back); Seam Tape; Labels
China
Dump Pocket Inside; Velcro Cuff Tabs; Chin Guard and Inner Collar; Elastic; Sewing Threads; Cord Adjusters
United States
Left Interior Patch Pocket
Switzerland
Nylon Cuff and Hem Facings
Taiwan
Trimmer Cord in Hood
Canada
Zipper for Interior Patch Pocket
Indonesia
Zippers for Sleeve, Chest, Pits
Japan
ISSUE:
Whether the Alpha SV Jacket Men’s imported from Canada is eligible for preferential tariff treatment under the USMCA.
LAW AND ANALYSIS:
The USMCA was signed by the Governments of the United States, Mexico, and Canada on November 30, 2018. The USMCA was approved by the U.S. Congress with the enactment on January 29, 2020, of the USMCA Implementation Act, Pub. L. 116-113, 134 Stat. 11, 14 (19 U.S.C. § 4511(a)). General Note (“GN”) 11 of the HTSUS implements the USMCA. GN 11(b) sets forth the criteria for determining whether a good is an originating good for purposes of the USMCA. GN 11(b) states:
For the purposes of this note, a good imported into the customs territory of the United States from the territory of a USMCA country, as defined in subdivision (l) of this note, is eligible for the preferential tariff treatment provided for in the applicable subheading and quantitative limitations set forth in the tariff schedule as a “good originating in the territory of a USMCA country” only if—
the good is a good wholly obtained or produced entirely in the territory of one or more USMCA countries;
the good is a good produced entirely in the territory of one or more USMCA countries, exclusively from originating materials;
the good is a good produced entirely in the territory of one or more USMCA countries using nonoriginating materials, if the good satisfies all applicable requirements set forth in this note (including the provisions of subdivision (o)); or
…
Here, the Alpha SV jacket contains non-originating materials including fabric from China, Switzerland, and Taiwan and zippers from Indonesia and Japan. Thus, the jacket is not considered a good wholly obtained or produced entirely in a USMCA country under GN 11(b)(i) nor is it produced exclusively from originating materials per GN 11(b)(ii). Therefore, we must determine whether the Alpha SV jacket qualifies under GN 11(b)(iii).
In order to determine whether the Alpha SV jacket qualifies for preferential tariff treatment under GN 11(b)(iii), the tariff classification must be ascertained. You claim that the jacket is classified under subheading 6210.40.25, HTSUS, which provides for, “Garments, made up of fabrics of heading 5602, 5603, 5903, 5906, or 5907: Other men’s or boys’ garments: Recreational performance outerwear: Of man-made fibers: Other.” Of the enumerated headings, the only heading applicable to the garment at issue is heading 5903, HTSUS. Heading 5903, HTSUS, provides for the classification of “[t]extile fabrics impregnated, coated, covered or laminated with plastics, other than those of heading 5902.” According to Note 2(a)(1) to Chapter 59, in order for a fabric to be considered coated within the meaning of heading 5903, HTSUS, the coating must be visible to the naked eye (whatever the nature of the plastic material), but no account is to be taken of changes in color. Therefore, in order to determine whether the jacket is classifiable in heading 6210, HTSUS, we must determine whether it is made up of textile fabric that is visibly coated with plastic. See Headquarters Ruling Letter (“HQ”) H303112 (Nov. 7, 2019); HQ 967884 (Oct. 26, 2005); and HQ 087852 (Nov. 27, 1990).
When reviewing fabrics assembled in layers under Note 2(a)(1) to Chapter 59, HTSUS, CBP examines the fabrics to ascertain whether the plastics layer is visible in the cross-section to the naked eye. See, e.g., HQ W968304 (Dec. 1, 2006) (classifying men’s rain garments); New York Ruling Letter (“NY”) M82475 (Aug. 29, 2006) (classifying certain bonded fabric); and NY L80809 (Dec. 28, 2004) (classifying men’s knit windblock garments). Additionally, CBP examines whether the plastics layer is visible through one of the assembled layers of fabric. In situations where one of the fabrics is of a loosely knitted or woven construction that allows the coating to be seen through that layer of fabric, CBP has considered such coating to be “visible to the naked eye.” See, e.g., NY L89462 (Jan. 13, 2006); and NY K87940 (July 23, 2004).
Applying the “visible to the naked eye” test on the fabric of the men’s jacket at issue, using normally corrected vision in a well-lighted room, no coating was visibly distinguishable from the fabrics without the use of magnification. A plastics layer was not visible to the naked eye in the cross-section of the fabric or through one of the layers. Thus, the fabric is not classified in heading 5903, HTSUS, and, as a result, the Alpha SV jacket is not a garment made up of fabric of heading 5903, HTSUS. The Alpha SV jacket is therefore not prima facie classifiable under heading 6210, HTSUS.
We find that the Alpha SV jacket is classified under heading 6201, HTSUS, which provides for, “Men’s or boys’ overcoats, carcoats, capes, cloaks, anoraks (including ski-jackets), windbreakers and similar articles (including padded, sleeveless jackets), other than those of heading 6203.” As a jacket of man-made fibers, subheading 6201.93, HTSUS, specifically provides for the Alpha SV. Classification at the eight-digit level will depend on whether the jacket meets the water resistance requirements of Additional U.S. Note 2 to Chapter 62, HTSUS, at the time of entry. If the Alpha SV jacket is water resistant, then it meets the definition of “recreational performance outerwear” set forth in Additional U.S. Note 3 to Chapter 62, HTSUS, because it is constructed from fabrics of man-made fibers, contains critically sealed seams, and contains more than five of the enumerated features including zippered pockets, an elastic draw cord hem for tightening to the body, venting, articulated elbows, weatherproof closure, a multi-adjustable hood, and arm gussets. See Additional U.S. Note 3 to Chapter 62, HTSUS. Accordingly, the Alpha SV jacket will be classified under subheading 6201.93.47, HTSUS, which provides for, “Men’s or boys’ overcoats, carcoats, capes, cloaks, anoraks (including ski-jackets), windbreakers and similar articles (including padded, sleeveless jackets), other than those of heading 6203: Anoraks (including ski-jackets), windbreakers and similar articles (including padded, sleeveless jackets): Of man-made fibers: Recreational performance outerwear: Other: Other: Other: Water resistant.” If the jacket is not water resistant pursuant to Additional U.S. Note 2 to Chapter 62, HTSUS, then it will be classified under subheading 6201.93.65, HTSUS.
The applicable rule of origin for goods classified in heading 6201, HTSUS, is in GN 11(o)/62.1, HTSUS, which provides “[a] change to headings 6201 through 6204 from any other chapter, except from headings 5106 through 5113, 5204 through 5212, 5310 through 5311, chapter 54, headings 5508 through 5516, 5801 through 5802 or 6001 through 6006, provided that the good is both cut (or knit to shape) and sewn or otherwise assembled in the territory of one or more of the USMCA countries.”
Chapter rule 2 to Chapter 62 provides, “For the purposes of determining the origin of a good of this chapter, 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, the jacket is classified by application of GRI 1 in heading 6201, HTSUS. Therefore, there is no need to employ an essential character analysis to classify this jacket. Accordingly, Chapter rule 2 does not apply in this case to restrict the application of the tariff shift rule to a specific component in the subject garment, but it does serve to eliminate from consideration those components not considered in classifying the garment such as the labels and minor accessories such as zippers and buttons. See, e.g., HQ H043056 (May 5, 2009). Thus, the tariff shift rule applies to the fabric used to form the body of the garment. The body of the jacket is laminated nylon woven fabric. You claim that this fabric is classified in heading 5903, HTSUS, but as discussed above, we find this to be incorrect because the fabric is not visibly coated with plastic. Rather, the nylon fabric is classified in either headings 5407 or 5408, HTSUS, as a woven fabric of synthetic filament yarn or headings 5512-5515, HTSUS, as a woven fabric of synthetic staple fibers. As these headings are exceptions to the tariff shift rule, the nylon fabric comprising the body of the jacket does not undergo the applicable change in tariff classification specified in GN 11(o)/62.1. Therefore, the Alpha SV Jacket Men’s does not qualify for preferential tariff treatment under the USMCA.
HOLDING:
Based on the information provided, the Alpha SV Jacket Men’s is not eligible for preferential tariff treatment under the USMCA.
Please note that 19 C.F.R. § 177.9(b)(1) provides that “[e]ach ruling letter is issued on the assumption that all of the information furnished in connection with the ruling request and incorporated in the ruling letter, either directly, by reference, or by implication, is accurate and complete in every material respect. The application of a ruling letter by a Customs Service field office to the transaction to which it is purported to relate is subject to the verification of the facts incorporated in the ruling letter, a comparison of the transaction described therein to the actual transaction, and the satisfaction of any conditions on which the ruling was based.”
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,
Yuliya A. Gulis, Chief
Food, Textiles and Marking Branch