OT:RR:CTF:FTM H324085 MJD
Center Director
Apparel, Footwear, and Textiles
Center of Excellence and Expertise
U.S. Customs and Border Protection
555 Battery St., 4th Floor
San Francisco, CA 94111
Attn: Adriana Garcia, Import Specialist
RE: Application for Further Review of Protest No. 4196-22-107960; Denial of Preferential
Tariff Treatment; United States-Korea Free Trade Agreement Eligibility of Men’s
Apparel
Dear Center Director:
The following is our decision regarding the Application for Further Review (“AFR”) of
Protest No. 4196-22-107960, timely filed by Grunfeld, Desiderio, Lebowitz, Silverman, and
Klestadt LLP, on January 5, 2022, on behalf of their client, Rhoback LLC (hereinafter
“Protestant”), concerning the eligibility of men’s pullovers and polos shirts for preferential tariff
treatment under the United States-Korea Free Trade Agreement (“UKFTA”).
The Protestant has requested that certain information submitted in connection with this
AFR request be treated as confidential. Inasmuch as this request conforms to the requirements of
19 C.F.R. § 177.2(b)(7), the request for confidentiality is approved. The information contained
within brackets will not be released to the public and will be withheld from published versions of
this ruling.
FACTS:
The merchandise at issue are men’s quarter zip pullovers in style Canine (“the Canine Q-
zips”), and men’s polo shirts in style Azalea (“the Azalea polos”). The Canine Q-zips are
constructed from 54% polyester, 32% nylon, and 14% spandex finely knit fabric that measures
40 stiches per two centimeters in the direction the stiches were formed. The quarter zip
pullovers feature a self-fabric stand-up collar with a zippered closure, long sleeves with self-
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fabric cuffs, an embroidered logo on the left chest, a heat seal strip below the center rear collar, a
half-moon sweat patch at the inner rear neckline, and a self-fabric bottom band that does not
provide tightening to the bottom of the garments. The applicable subheading for the Canine Q-
zips is subheading 6110.30.3053, Harmonized Tariff Schedule of the United States Annotated
(“HTSUSA”), which provides for “Sweaters, pullovers, sweatshirts, waistcoats (vests) and
similar articles, knitted or crocheted: Of man-made fibers: Other: Other: Other: Other: Other:
Men’s or boys’: Other.”
The Azalea polos are constructed from 92% polyester and 8% spandex knit fabric that
measures more than 10 stitches per linear centimeter in both the horizontal and vertical
directions. The polos feature a self-fabric collar; a left-over-right, partial front opening with
three button closures; short, hemmed sleeves; an embroidered logo on the left chest; and a
straight, hemmed bottom. The applicable subheading for the Azalea polos is 6105.20.2010,
HTSUSA, which provides for “Men’s or boys’ shirts, knitted or crocheted: Of man-made fibers:
Other: Men’s.”
On August 31, 2020, the Protestant entered, 3,070 units (256 dozen) of men’s 54%
polyester, 32% nylon, and 14% spandex quarter zips, 376 units of which were the Canine Q-zips,
classifiable under subheading 6110.30, HTSUS, and 2,203 units (184 dozen) of men’s 92%
polyester, 8% spandex knit short sleeve polos, 943 units of which were the Azalea polos,
classifiable under subheading 6105.20, HTSUS, as eligible for preferential tariff treatment under
the UKFTA. On February 4, 2021, the Center issued a Request for Information (“CBP Form
28”) stating that it was conducting an origin verification in accordance with 19 C.F.R. § 10.1026
and UKFTA Article 6.18 and that it needed documentation to substantiate the Protestant’s claim
that the Canine Q-zips were eligible for preferential tariff treatment under the UKFTA.
On February 4, 2021, CBP issued a Request for Information (“CBP Form 28”) seeking
certain information from the Protestant to substantiate its origin claims. On May 11, 2021, CBP
issued a proposed Notice of Action (“CBP Form 29”) requesting certain information to verify the
originating status of the Canine Q-zips under the UKFTA. On June 17, 2021, CBP issued a CBP
Form 29 advising the Protestant that a negative determination was made with respect to its claim
for preferential tariff treatment under the UKFTA. Subsequently, CBP liquidated the entries on
July 9, 2021, denying preferential tariff treatment under the UKFTA for the subject entries,
which included the Canine Q-zips and Azalea polos. Counsel for the Protestant timely filed a
protest on January 5, 2022, claiming that the imported merchandise qualified for preferential
tariff treatment under the UKFTA. Specifically, the Protestant stated that the Canine Q-zips and
the Azalea polos are cut, sewn, and assembled in South Korea from fabric made in South Korea
of South Korean-origin yarn.
With respect to the Canine Q-zips, the Protestant provides that the production process
began with it placing an order for the subject merchandise with [***], the garment vendor,
located in Busan, South Korea. Subsequently, [***], the garment vendor, entered into a
subcontracting agreement with [***], the garment manufacturer, located in Busanjin-gu, South
Korea, to make the subject Canine Q-zips. [***], the garment manufacturer, purchased the 54%
polyester, 32% nylon, and 14% spandex fabric used to make the Canine Q-zips from [***], the
fabric manufacturer, located in Gyeonggi-do, South Korea. The fabric is identified as SP-
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4545NP: NY FDY 30/24 BR + PE DTY 50/72 SD + SPAN 40D. The fabric manufacturer,
[***], was supplied the nylon yarn to make the fabric from [***], a nylon yarn dealer located in
Gyeonggido, South Korea. [***], the nylon yarn dealer, was supplied the nylon yarn from [***],
a nylon manufacturer located in Seoul, South Korea. The nylon yarn is identified as NY SDY
30/24 BR.
[***], the fabric manufacturer, was supplied the spandex yarn to make the fabric by
[***], a spandex yarn dealer located in Seoul, South Korea. [***], the spandex yarn dealer, was
supplied the spandex yarn from [***], a spandex yarn manufacturer located in Gyeongsanguk-
do, South Korea. The spandex yarn is identified as spandex 40DE. Lastly, the fabric
manufacturer, [***], was supplied the polyester yarn used in the fabric from [***], the polyester
yarn dealer located in Jongno-Gu, South Korea. The polyester yarn is identified as Polyester
Draw Textured Yarn (FUZ, 50/72 4033S, AA, CNT).
Once the fabric manufacturer, [***], received the yarns it makes the 54% polyester, 32%
nylon, and 14% spandex fabric. The fabric is identified as SP-4545NP: NY FDY 30/24 BR + PE
DTY 50/72 SD + SPAN 40D. After knitting the fabric, it is finished at [***], located in South
Korea, to be prepared for printing. Then, [***], the fabric manufacturer, prints the fabric with
the artwork. [***], the garment vendor, pays [***], the fabric manufacturer, for the printed
fabric and has it sent to [***], the garment manufacturer. [***], the garment manufacturer, cuts
the fabric into necessary components and assembled those components into the finished Canine
Q-zips. When [***], the garment manufacturer, finished the Canine Q-zips, [***], the garment
vendor, exported the finished pullover from South Korea to the United States.
In support of its argument, the Protestant provides a purchase order between it and [***],
the garment vendor, for the manufacture of the men’s 54% polyester, 32% nylon, and 14%
spandex quarter zips that included the manufacture of the Canine Q-zips; the subcontracting
agreement between [***], the garment vendor, and [***], the garment manufacturer, for the
manufacture of Canine Q-zips; a bill of materials that identifies all of the components used in the
production of the Canine Q-zips that identifies the country of origin of the fabric as South Korea
and the rest of the components as “unknown,” and names the supplier of the components; the
fabric detail sheets for the Canine Q-zips, which identifies the fabric number as SP-4545NP, the
garment manufacturer [***], and the garment vendor [***]; and a packing list, trucking receipt,
and trucking invoice evidencing the sale and shipment of the fabric.
The Protestant also provides invoices evidencing the sale of the polyester, nylon, and
spandex yarns from the yarn manufacturers and yarn dealers. In addition, the Protestant provides
a declaration of origin for the fabric issued by [***], the garment manufacturer, that identifies
the supplier of the fabric [***], the garment vendor [***], the fabric number (SP-4545NP), the
country of origin of the fabric as South Korea, and the classification of the fabric as under
subheading 6004.10, HTSUS; and invoices evidencing the sale of the polyester, nylon, and
spandex yarns from South Korean manufacturers and dealers to the fabric manufacturer, [***].
Moreover, the Protestant provides a declaration of origin from each of the yarn manufacturers
and yarn dealers. Specifically, the Protestant provides a declaration of origin from [***], the
nylon yarn manufacturer, to [***], the nylon yarn dealer, stating that the country of origin of the
nylon yarn is South Korea; a declaration of origin from [***], the nylon yarn dealer, to [***], the
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fabric manufacturer, providing that the country of origin of the nylon yarn is South Korea; a
declaration of origin from [***], the polyester yarn dealer, to [***], the fabric manufacturer,
providing that the country of origin of the polyester yarn is South Korea; a declaration of origin
from [***], the spandex yarn manufacturer, to [***], the spandex yarn dealer, providing that the
country of origin of the spandex yarn is South Korea; and a declaration of origin from [***], the
spandex yarn dealer, to [***], the fabric manufacturer, providing that the country of origin of the
spandex yarn is South Korea.
Lastly, and at the request of CBP for further information, the Protestant provided
additional details in the form of a Word document, regarding the production process of each yarn
used in the Canine Q-zips. The production steps are as follows:
a. Polyester Yarn – [***], the yarn manufacturer, spun the yarn and sold it to [***],
a yarn supplier. [***], the yarn supplier, sold the yarn to [***], the fabric
manufacturer, to use it for knitting the fabric. The polyester yarn is identified
as Polyester Draw Textured Yarn (FUZ, 50/72 4033S, AA, CNT). The polyester
yarn is made by extruding pellets through spinnerets to form long threads which
are twisted together to create the yarn.
b. Spandex Yarn – [***], the yarn manufacturer, spun the yarn and sold it to [***],
the yarn supplier. [***], the yarn supplier, sold the yarn to [***], the fabric
manufacturer, to use it for knitting the fabric. The spandex yarn is identified
as Spandex 40DE. The spandex is produced via dry spinning. This process
involves dissolving polymers in solvent and spinning them into a continuous
filament. Then, the filaments are drawn to desired quality (strength/elasticity,
etc).
c. Nylon Yarn – [***], the yarn manufacturer, spun the yarn and sold it to [***], the
nylon yarn supplier. [***], the yarn spinner, sold the yarn to [***], the fabric
manufacturer, to use it for knitting the fabric. The nylon yarn is identified as NY
SDY 30/24 BR. The nylon yarn is made by melting the polymers and extruding
through a spinneret. The resulting fibers are stretched to desired
strength/elasticity and then spun into yarn.
With respect to the Azalea polos, the Protestant provides that the production process
began with them placing an order for the subject merchandise with [***], the garment vendor.
Subsequently, [***], the garment vendor, entered into a subcontracting agreement with [***], the
garment manufacturer, located in Busan, South Korea to manufacture the subject Azalea polos.
[***], the garment manufacturer, purchased the 92% polyester and 8% spandex fabric used to
make the Azalea polos from [***], located in Daegu, South Korea, which printed the fabric with
artwork after it was finished at [***], located in Gyeonggi-do, South Korea. The finishing
process includes applying an adhesive agent so the design applied during printing will stick to
the fabric. [***], located in Gyeonggi-do, South Korea, knits the 92% polyester and 8% spandex
fabric used to make the Azalea polos. The fabric is identified as 75/72 DTY SD + SPAN 30D.
[***], the fabric knitter, obtained the polyester yarn used in the fabric from [***], a yarn supplier
located in Gyeonggi-do, South Korea, which obtained the yarn from [***], the polyester yarn
spinner located in Gyeongsangbuk-do, South Korea. The polyester yarn is identified as polyester
draw Textured Yarn DTY 075/072 RSD.
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[***], the fabric knitter, obtained the spandex yarn used in the fabric from [***], the
spandex yarn supplier located in Gyeonggi-do, South Korea, which obtained that yarn from
[***], the spandex yarn spinner in Gyeongsangbuk-do, South Korea. The spandex yarn is
identified as Spandex 30DE. Once [***], the fabric knitter, received the yarns and knit the 92%
polyester and 8% spandex fabric, [***], the garment manufacturer, cut the fabric into necessary
components and assembled those components into the finished Azalea polos. When the Azalea
polos were completed, [***], the garment vendor, exported the polos from South Korea to the
United States.
In support of its argument, the Protestant provides a purchase order between themselves
and [***], the garment vendor, for the manufacture of the Azalea polos; the subcontracting
agreement between [***], the garment vendor, and [***], the garment manufacturer; a bill of
material that identifies all of the components used in the production of the subject Azalea polos,
which identifies the country of origin of the fabric as South Korea and the rest of the components
as “unknown,” and names the supplier of the components; the fabric detail sheets identifying the
fabric printer [***], the buyer [***], and the fabric composition (92% polyester, 8% spandex); a
packing list, trucking receipt, and tax invoice evidencing the sale and shipment of the fabric used
to make the Azalea polos; declaration of origins that details the sale of the fabric from [***], the
fabric knitter, to [***], the fabric finisher, to [***], the fabric printer, and for the sale of the
fabric from [***], the fabric printer, to [***], the garment vendor.
The Protestant also provides invoices evidencing the sale of the polyester and spandex
yarns from the yarn manufacturers and yarn dealers. In addition, the Protestant provides
declarations of origin from each of the yarn manufacturers and yarn dealers. Specifically, the
Protestant provides a declaration of origin from [***], the polyester yarn spinner, to [***], the
polyester yarn supplier, providing that the country of origin of the polyester yarn is South Korea;
a declaration of origin providing that [***], the polyester yarn supplier, supplied the polyester
yarn to [***], the fabric knitter, stating that the country of origin of the polyester yarn is South
Korea; a declaration of origin providing that [***], the spandex yarn spinner, provided the
spandex yarn to [***], the spandex yarn supplier, showing the country of origin of the yarn is
South Korea; and a deceleration of origin between [***], the spandex yarn supplier, to [***], the
fabric knitter, showing that the country of origin of the spandex yarn is South Korea
Lastly, and at the request of CBP for further information, the Protestant provided
additional details in the form of a Word document, specifics regarding the production process of
each yarn used in the Azalea polos. The production steps are as follows:
a. Polyester Yarn – [***], the polyester yarn spinner, spun the yarn and sold it to
[***], the yarn supplier. [***], the yarn supplier, sold the yarn to [***], the fabric
knitter, to use it for knitting the fabric. The polyester yarn is identified as
Polyester Draw Textured Yarn DTY 075/072 RSD. The polyester yarn is made
by extruding pellets through spinnerets to form long threads which are twisted
together to create a yarn.
b. Spandex Yarn – [***], the spandex yarn spinner, spun the yarn and sold it to
[***], the spandex yarn supplier. [***], the spandex yarn supplier, sold the yarn
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to [***], the fabric knitter, to use it for knitting the fabric. The spandex yarn is
identified as Spandex 30DE. The spandex is made via solution dry spinning.
This process involves dissolving polymers in solvent and spinning into a
continuous filament. Then, the filaments are drawn to desired quality
(strength/elasticity, etc).
ISSUE:
Whether the Canine Q-zips and Azalea polos imported from South Korea are eligible for
preferential tariff treatment under the UKFTA.
LAW AND ANALYSIS:
The requirements for eligibility for preferential tariff treatment under the UKFTA are set
forth in General Note (“GN”) 33 of the HTSUS (19 U.S.C. § 1202). GN 33 provides in pertinent
part:
(b) For the purposes of this note subject to the provisions of subdivisions (c),
(d), (n) and (o) thereof, a good imported into the customs territory of the
United States is eligible for treatment as an originating good of a UKFTA
country under the terms of this note if-
(i) The good is wholly obtained or produced entirely in
the territory of Korea or of the United States, or both.
(ii) The good is produced entirely in the territory of
Korea or of the United States, or both, and-
A. Each of the nonoriginating materials used in the production of
the good undergoes an applicable change in tariff classification
specified in subdivision (o) of this note; or
B. The good otherwise satisfies any applicable regional value-
content or other requirements set forth in such subdivision (o);
and
satisfies all other applicable requirements of this note and of
applicable regulations; or
(iii) The good is produced entirely in the territory of
Korea or of the United States, or both, exclusively from
materials described in subdivisions (i) or (ii), above.
With respect to textile and apparel articles, GN 33(d), HTSUS, states as follows:
(i) For purposes of this note, a textile or apparel good provided for in
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subheadings 4202.12, 4202.22, 4202.32 or 4202.92, chapters 50 through
63, heading 7019 or subheading 9404.90 of the tariff schedule is an
originating good if:
A. each of the nonoriginating materials used in the production of
the good undergoes an applicable change in tariff classification
specified in subdivision (o) of this note as a result of production
occurring entirely in the territory of Korea or of the United
States, or both, or the good otherwise satisfies the applicable
requirements of this note where a change in tariff classification
for each nonoriginating material is not required, and
B. the good satisfies any other applicable requirements of this note.
The provisions of subdivision (o) of this note shall not apply in
determining the country of origin of a textile or apparel good
for nonpreferential purposes.
Since the Canine Q-zips and Azalea polos are made with non-originating materials, they
are not considered goods wholly obtained or produced entirely in the territory of South Korea or
of the United States, or both under GN 33(b)(i), and they do not qualify under GN 33(b)(iii). As
a result, we must determine whether the Canine Q-zips and the Azalea polos qualify under GN
33(b)(ii), satisfying the tariff shift rule.
The Canine Q-zips are classified in subheading 6110.30, HTSUS. The applicable tariff
shift rule is set forth in GN 33(o)/61.33, which requires the following:
A change to headings 6109 through 6111 from any other chapter, except from
headings 5106 through 5113, 5204 through 5212, 5307 through 5308, 5310
through 5311 or 5401 through 5402, subheadings 5403.33 through 5403.39 or
5403.42 through heading 5408 or headings 5508 through 5516 or 6001 through
6006, provided that the good is both cut (or knit to shape) and sewn or otherwise
assembled in the territory of Korea or of the United States, or both.
The Azalea polos are classified in subheading 6105.20, HTSUS. The applicable tariff
shift rule is set forth in GN 33(o)/61.24, which requires the following:
A change to headings 6105 through 6106 from any other chapter, except from
headings 5106 through 5113, 5204 through 5212, 5307 through 5308, 5310
through 5311 or 5401 through 5402, subheadings 5403.33 through 5403.39 or
5403.42 through heading 5408 or headings 5508 through 5516 or 6001 through
6006, provided that the good is both cut (or knit to shape) and sewn or otherwise
assembled in the territory of Korea or of the United States, or both.
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Under the UKFTA, in addition to the tariff shift rules noted above, the Canine Q-zips and
the Azalea polos must also meet any applicable chapter rules found in GN 33(o), Chapter 61.
Chapter 61, chapter rule 2 applies to the subject goods. This rule states, in relevant 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.
With respect to the meaning of, the component that determines the tariff classification of
the good, GN 33(d)(v) provides in relevant part:
For purposes of this note, in the case of a good that is a yarn, fabric or fiber, the
term “component of the good that determines the tariff classification of the good”
means all of the fibers in the good.
Here, the component that determines the tariff classification of the Canine Q-zips is the
polyester, nylon, and spandex fabric of the garment. Accordingly, this fabric is the only
component that must satisfy the tariff shift rule set forth in GN 33(o)/61.33. In the case of the
Azalea polos, the component that determines its tariff classification is the polyester and spandex
fabric. Accordingly, this fabric is the only component that must satisfy the tariff shift rule set
forth in GN 33(o)/61.24.
However, under the UKFTA there is another requirement that must be satisfied for a
fabric to be originating if it contains elastomeric yarn. GN 33(d)(iv) provides in relevant part:
A textile or apparel good may be considered to be an originating good if—
[…]
Notwithstanding the provisions of subdivision (d)(iv)(A), a 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 and finished in the territory of Korea or of the
United States.
According to GN 33(d)(iii)(B), “wholly formed and finished” means the following:
when used in reference to yarns, all production processes and finishing
operations, beginning with the extrusion of filaments, strips, film or sheets, and
including drawing to fully orient a filament or slitting a film or sheet into strip, or
the spinning of all fibers into yarn, or both, and ending with a finished yarn or
plied yarn.
[…]
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Therefore, in the instant case, the elastomeric yarn, i.e., the spandex yarn in both the
Canine Q-zips and the Azalea polos must be wholly formed and finished in the territory of South
Korea or of the United States in order for the garments at issue to be originating goods under the
UKFTA. With respect to the Canine Q-zips, the Protestant provides a declaration of origin
covering the sale of the spandex yarn between [***], the spandex yarn manufacturer, and [***],
the spandex yarn dealer, both located in South Korea. The declaration of origin identifies the
spandex as “Spandex 40DE (Z4653-H350, BR_40/3, AA, 59EA, 550g) (”SPKH35l3Z 4653-13);
the country of origin of the spandex as South Korea; the name of the spandex yarn factory, [***];
the name of the representative and Director of [***], the spandex yarn manufacturer; the name of
the representative of [***], the spandex yarn dealer; and the address of [***], the spandex yarn
manufacturer. The Protestant also provides an invoice from [***], the spandex yarn
manufacturer to [***], the spandex yarn dealer, for the spandex yarn, which identifies the yarn as
“SPKH35l3Z 4653-13, Z4653-H350, BR_40/3, AA, 59EA, 550g spandex yarn.” Lastly,
Protestant provides a narrative in the form of a Word document, that states, in part, that [***],
the spandex yarn manufacturer, spun the yarn, and that the spandex yarn was manufactured via
dry spinning, which involves dissolving polymers in solvent and spinning them into a continuous
filament until the filaments are drawn to a desired quality (strength/elasticity, etc.).
Similarly, and with respect to the Azalea polos, the Protestant provides a declaration of
origin covering the sale of the spandex yarn between [***], the spandex yarn spinner, and [***],
the spandex yarn supplier, both located in South Korea. The declaration of origin identifies the
spandex as Spandex 30DE; the country of origin of the spandex as South Korea; the name of the
representative of [***], the spandex yarn spinner, and [***], the spandex yarn supplier; and the
address of both the spandex yarn spinner and the spandex yarn supplier. The Protestant also
provides invoices from [***], the spandex yarn spinner to [***], the spandex yarn supplier, for
the spandex yarn, which provides the South Korean addresses for both the spandex yarn spinner
and the spandex yarn supplier, the registration number for the spandex yarn spinner and the
spandex yarn supplier, the name of the representative of the spandex yarn spinner and the
spandex yarn supplier, and identifies the yarn as “synthetic yarn.” Lastly, the Protestant
provides a narrative in the form of a Word document that states, in part, that [***], the spandex
yarn spinner, spun the yarn, and that the spandex yarn was manufactured via solution dry
spinning, which involves dissolving polymers in solvent and spinning them into a continuous
filament until the filaments are drawn to a desired quality (strength/elasticity, etc.).
Upon review of the abovementioned documents, for both the Canine Q-zips and the
Azalea polos, we find the evidence lacking to demonstrate that the spandex yarns in both
garments were wholly formed and finished in South Korea in accordance with GN 33(d)(iii)(B).
In the case of the Canine Q-zips, the invoice and declaration of origin reference the same
spandex yarn manufacturer and spandex yarn dealer, and the same spandex yarn, and, in the case
of the Azalea polos, the invoices and the declaration of origin reference the same spandex yarn
spinner and spandex yarn supplier, albeit the invoices reference “synthetic yarn,” and the
declaration of origin specifically refers to “Spandex 30 DE.” We find that these documents
alone are insufficient to substantiate that the garments were made from spandex yarn wholly
formed and finished in South Korea. The narratives provided mention that the spandex yarns for
both garments were spun in South Korea and manufactured via a solution dry spinning or dry
spinning, but these records were provided in Word document format and are not supported by
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other official or verifiable documents. Therefore, absent additional documentation that cross
references the spandex yarns and official documentation providing details on how the spandex
yarns for both the Canine Q-zips and the Azalea polos were manufactured, we find that the
spandex yarns were not wholly formed and finished in South Korea pursuant to GN 33(d)(iv)
and GN 33(d)(iii)(B).
CBP has previously ruled on the documentation required to support a claim that yarn is
wholly formed and finished in a country for preferential tariff treatment purposes. For example,
in Headquarters Ruling Letter (“HQ”) H185140, dated March 13, 2015, CBP found that with
respect to certain women’s knitted long sleeve crewneck blouses and short sleeve blouses from
Mexico, the documentation the Protestant provided supported the claim that the garments were
made from yarn spun in Mexico and that the garments qualified for preferential tariff treatment
under the North American Free Trade Agreement (“NAFTA”). Specifically, in HQ H185140,
for both styles of garments, the Protestant provided the purchase order from the manufacturer to
the yarn producer for a specific amount of yarn with the name of the yarn, an invoice from the
yarn producer to the manufacturer referencing the purchase order number and the name of the
yarn, the packing list and the yarn delivery report that corresponded to the invoice listing
matching information, the yarn transportation receipt for one style listed the place of departure as
the address of the yarn producer’s factory, and the destination as the manufacturer, a table
labeled “yarn receiving record” stating the name of the yarn and that the yarn was received from
the yarn producer and references the invoice number and purchase order number, and a
manufacturer’s affidavit for the yarn issued by the yarn producer certifying that the yarns listed
on the purchase orders and invoices were sold to the manufacturer and were formed (spun or
extruded) in Mexico.
Unlike HQ H185140, where the Protestant provided several documents cross referencing
the yarn throughout the manufacturing process and where the Protestant provided verifiable
documents discussing the manufacturing of the yarn, in the instant case we only have invoices
and declarations of origin with no manufacturing information, and we have no other
documentation that cross references other documents that mention the spandex yarn to support
the claim that the spandex yarns in both the Canine Q-zips and the Azalea polos were wholly
formed and finished in South Korea.
Conversely, in HQ H145540, dated July 25, 2011, CBP found that it properly disallowed
preferential tariff treatment under NAFTA for imported yarn due to the Protestant’s failure to
provide additional documentation that the yarn was produced in Mexico. Specifically, and with
respect to the polyester yarn at issue, CBP pointed out that the Protestant did not provide
production records and documents that the polyester fiber used to produce the yarn were
originating. CBP stated that the only documents they had to address the origin of the polyester
yarn was a letter on letterhead from the company that supplied the polyester fibers and the
NAFTA certificate of origin, which did not demonstrate that the fibers were produced in Mexico.
Similar to the facts in HQ H145540, we find that the invoices and declarations of origins for both
the Canine Q-zips and Azalea polos are insufficient to substantiate that the spandex yarns were
wholly formed and finished in South Korea.
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Accordingly, because the documentation provided does no support that the elastomeric
yarns, i.e., the spandex yarns, are wholly formed and finished in South Korea pursuant to GN
33(d)(iv) and GN 33(d)(iii)(B), HTSUS, we find that the Canine Q-zips and the Azalea polos do
not meet the requirements of GN 33(b)(ii)(A), HTSUS, and are ineligible for preferential tariff
treatment under the UKFTA.
HOLDING:
Based on the information provided, the Canine Q-zips and Azalea polos are ineligible for
preferential tariff treatment under the UKFTA.
You are instructed to DENY the protest. You are instructed to notify the Protestant of
this decision no later than 60 days from the date of this decision. Any reliquidation of the entry
or entries in accordance with this decision must be accomplished prior to this notification. Sixty
days from the date of the decision, the Office of Trade, Regulations and Rulings will make this
decision available to CBP personnel and the public on the Customs Rulings Online Search
System (CROSS) at https://rulings.cbp.gov/, or other methods of public distribution.
Sincerely,
Yuliya A. Gulis, Director
Commercial and Trade Facilitation Division
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