HQ 0556361 - Applicability of duty exemption under U.S. Note 2(b), subchapter II, Chapter 98, HTSUS, to footwear and footwear uppers produced in the Dominican Republic; CSD 89-27(4), 555742, 067823, 555886 - United States International Trade Commision Rulings

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HQ 556361

December 11, 1991

CLA-2 CO:R:C:S 556361 SER

CATEGORY: CLASSIFICATION

Mr. Laverne L. Leese
Littonian Shoe Company
P.O. Box 95
Littlestown, PA 17340

RE: Applicability of duty exemption under U.S. Note 2(b), subchapter II, Chapter 98, HTSUS, to footwear and footwear uppers produced in the Dominican Republic; CSD 89-27(4), 555742, 067823, 555886

Dear Mr. Leese:

This is in reference to your letter of June 21, 1991, requesting a ruling on the eligibility for duty-free treatment under U.S. Note 2(b), subchapter II, Chapter 98, Harmonized Tariff Schedule of the United States (HTSUS), of footwear and footwear uppers produced in the Dominican Republic.

FACTS:

The footwear at issue is produced from greige goods of either U.S. or foreign origin. In the U.S., the greige goods are either bleached and dyed, or bleached, dyed and printed. Next, two pieces of this fabric are joined together through a laminating process involving a latex bonding material, heat and pressure. After the lamination process, the fabric is cut to shape in the U.S. and shipped to the Dominican Republic for completion of the footwear.

In the Dominican Republic, the manufacture of the footwear involves applying a thin layer of plastic to the toe area of the vamp. The fabric components are then sewn together to form the shoe upper, eyelets are inserted, and the upper is attached to a last. U.S.-origin thermoplastic pellets are melted, formed, and then joined with the upper in an injection molding machine to form the final article.

The footwear uppers are also manufactured from either U.S.- origin or imported greige goods. In the U.S., the greige goods are bleached, dyed and printed. Two layers of these greige goods are then laminated together using a latex adhesive, pressure and heat. The laminated fabric is then cut to shape. These fabrics and the other necessary components, all of U.S. origin, are shipped to the Dominican Republic for completion of the footwear uppers.

In the Dominican Republic, the laminated fabric is sewn together, a thin layer of plastic is applied to the toe area of the forward section of the upper, the different fabric components are sewn together, and the eyelets are then inserted. The completed uppers are then exported to the U.S., where they are manufactured into completed footwear.

ISSUES:

Whether the footwear and footwear uppers are entitled to duty-free treatment under U.S. Note 2(b), subchapter II, Chapter 98, HTSUSA.

LAW AND ANALYSIS:

Section 222 of the Customs and Trade Act of 1990 (P.L. 101- 382) amended U.S. Note 2, subchapter II, Chapter 98, HTSUS, ("Note 2(b)") to provide for duty-free treatment of articles, other than certain specified products, which are assembled or processed in a Caribbean Basin Initiative beneficiary country (BC) wholly of fabricated components or ingredients (except water) of U.S. origin. This amendment was effective with respect to goods entered on or after October 1, 1990.

Specifically, Note 2(b) provides as follows:

(b) No article (except a textile article, apparel article, or petroleum, or any product derived from petroleum, provided for in heading 2709 or 2710) may be treated as a foreign article, or as subject to duty, if-

(i) the article is--

(A) assembled or processed in whole of fabricated components that are a product of the United States, or

(B) processed in whole of ingredients (other than water) that are a product of the United
States, in a beneficiary country; and

(ii) neither the fabricated components, materials or ingredients, after exportation from the United States, nor the article itself, before importation in the United States, enters the commerce of any foreign country other than a beneficiary country.

As used in this paragraph, the term "beneficiary country" (BC) means a country listed in General Note 3(c)(v)(A), HTSUS.

1. Eligibility of Footwear and Footwear Uppers

As stated above, Note 2(b) specifies four categories of products which are excluded from duty-free treatment under this provision: textile articles; apparel articles; petroleum; and certain petroleum products. Therefore, the first issue presented concerns whether the footwear and footwear uppers are included in the "textile and apparel article" exclusion for purposes of Note 2(b) and, therefore, precluded from receiving duty-free treatment under this provision.

In Headquarters Ruling Letters (HRLs) 555742 dated November 5, 1990, and 555788 dated September 9, 1991, we held that footwear and footwear uppers are not considered textile or apparel articles, and, therefore, are eligible for duty-free treatment under this subheading.

2. Country of Origin of Fabric Sent to the Dominican Republic

To qualify for Note 2(b) duty-free treatment, an eligible article must be assembled or processed in a BC entirely of components or ingredients that are a "product of" the U.S. A "product of" the U.S. is an article manufactured within the customs territory of the U.S. Foreign-made articles or materials may become products of the U.S. if they undergo a process of manufacture in the U.S. which results in their substantial transformation. See, for example, sections 10.12(e) and 10.14(b), Customs Regulations (19 CFR 10.12(e) and 10.14(b)).

Section 12.130, Customs Regulations (19 CFR 12.130), governs the determination of the country of origin of textiles or textile products. According to 19 CFR 12.130(b), a textile or textile product will be considered to have undergone a substantial transformation if it has been transformed by means of substantial manufacturing or processing operations into a new and different article of commerce. A new and different article of commerce will usually result from a manufacturing or processing operation if there is a change in: 1) commercial designation or identification; 2) fundamental character; or 3) commercial use. 19 CFR 12.130(d)(1).

In determining whether merchandise has undergone substantial manufacturing or processing operations, we consider the following: (1) Physical change in the material or article; (2) Time involved in manufacturing or processing; (3) Complexity of the operations; (4) Level or degree of skill and/or technology required; and (5) Value added to the material or article. 19 CFR

In this case, imported foreign-made greige goods (textile products for purposes of 19 CFR 12.130) are bleached, dyed and/or printed in the U.S. Two layers of the fabric are then laminated together through the use of a latex adhesive, heat and pressure. After the lamination process, the fabric is then cut to shape in the U.S.

According to 19 CFR 12.130 (e)(1)(iv), a textile article or material usually will be a product of a particular country if the cutting of the fabric into parts and the assembly of those parts into the completed article have occurred in that country. Customs has consistently ruled that cutting-to-shape operations constitute a substantial transformation if the cutting creates defined patterns or shapes suitable for use as components in an assembly operation. See HRLs 555742, 555788, 067823 dated June 2, 1982, 1991, and C.S.D. 89-27(4) (HRL 554929 dated November 3, 1988). Therefore, the foreign greige goods which are imported into the U.S. and subsequently cut into various shapes necessary to construct the footwear and footwear uppers are substantially transformed into "products of" the U.S.

3. Assembly and Processing in the Dominican Republic

The operations to be performed in the Dominican Republic in the production of the footwear and footwear uppers consist primarily of: sewing the laminated fabric components together; applying a thin layer of plastic to the toe area of the vamp; sewing different fabric components together; and inserting the eyelets. The footwear is completed by securing the upper to a last and applying thermoplastic, formed by injection molding, to the uppers.

We have previously held that operations similar to those described above are encompassed by Note 2(b). See HRL 555742. Therefore, if, in fact, all materials are of U.S. origin, the footwear and footwear uppers are shipped directly to the U.S. without entering into the commerce of any foreign country other than a BC, and the applicable documentation requirements are satisfied, the footwear uppers will be entitled to duty-free treatment under this provision.

HOLDING:

On the basis of the information submitted, we conclude that the footwear and footwear uppers made in the Dominican Republic wholly from materials of U.S. origin are entitled to duty-free treatment under Note 2(b), upon compliance with the documentation requirements set forth in Headquarters telex 9264071 dated September 28, 1990 (copy enclosed).

Sincerely,

John Durant, Director
Commercial Rulings Division

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