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HQ 966815




June 2, 2004

CLA-2 RR:CR:TE 966815 ASM

CATEGORY: CLASSIFICATION

TARIFF NO.: 6217.10.9530

Mr. Harvey B. Fox
Adduci, Mastriani & Schaumberg, LLP
1200 Seventeenth Street , N.W.
Washington, D.C. 20036

RE: Request for reconsideration of NY J88289, regarding classification and status under the North American Free Trade Agreement (NAFTA), of Safety Vests made from woven fabric with non-visible coating

Dear Mr. Fox:

This is in response to a letter, dated October 22, 2003, on behalf of your client, CTM, L.L.C., requesting reconsideration of Customs and Border Protection (CBP) New York Ruling Letter (NY) J88289, dated September 22, 2003, involving the classification of safety vests under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). Samples have been submitted to this office for examination.

FACTS:

In your original ruling request, dated August 25, 2003, which led to the issuance of NY J88289, the fabric used to construct the garment now at issue was identified as “Exhibit B” and the completed garment as “Exhibit D”. NY J88289, refers to “Exhibit D” as the “second safety vest” (hereinafter, “Exhibit D”). The woven polyester fabric used to construct “Exhibit D” is imported from Korea into Mexico where it will be cut and sewn into safety vests. Reflective tape produced in the United States will be imported into Mexico in rolls where it will be cut to length and stitched on to the vests. The pocketing, interlining, and zipper are produced in the United States and exported to Mexico. The finished vests will then be exported to the United States.

In NY J88289, “Exhibit D” was classified in subheading 6217.10.9530, HTSUSA, which provides for “Other made up clothing accessories; parts of garments or of clothing accessories, other than those of heading 6212: Accessories: Other: Other, Of man-made fibers”. CBP determined that the woven fabric used to construct the vest identified as “Exhibit D” was classified in Chapter 54 or headings 5512 through 5516, HTSUSA. Accordingly, CBP held that “ one or more of the non-originating materials used in the production of the goods will not undergo the change in tariff classification required by General Note 12(t)/62.38, HTSUSA.” Therefore, the garment identified as “Exhibit D” was not eligible for preferential treatment under the North American Free Trade Agreement (NAFTA).

You disagree with CBP’s denial of NAFTA treatment for the subject garment. While you agree that the article is properly classified in subheading 6217.10.9530, HTSUSA, which provides for “Other made up clothing accessories; parts of garments or of clothing accessories, other than those of heading 6212: Accessories: Other: Other, Of man-made fibers”, you disagree with the classification of the non-originating fabric used to construct the garment and believe it to have a visible coating which would make it classifiable in heading 5903, HTSUSA, when imported into Mexico. Based on your analysis, the garment identified as “Exhibit D” would undergo the qualifying tariff shift when cut and sewn into safety vests and should be accorded preferential treatment under the NAFTA.

ISSUE:

What is the proper classification for the merchandise?

LAW AND ANALYSIS:

Classification under the HTSUSA is made in accordance with the General Rules of Interpretation (GRI). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative Section or Chapter Notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the heading and legal notes do not otherwise require, the remaining GRI may then be applied. The Harmonized Commodity Description and Coding System Explanatory Notes (“ENs”) constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUS and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

This office has carefully reviewed the original sample submitted with your ruling request. In fact, the sample identified as “Exhibit D” does not have a visible coating. Accordingly, NY J88289 presented an accurate description of the non-originating fabric and correctly classified that fabric in Chapter 54 or headings 5512 through 5516, HTSUSA, which means that the subject garment failed to undergo the requisite tariff shift needed to qualify for NAFTA treatment. We note that the sample identified by you as “Exhibit B” in your request for reconsideration dated October 22, 2003, has been forwarded to this office. The sample identified as “Exhibit B” does have one side with a visible coating which has been used to form the inside of the vest. Furthermore, the reflective strips sewn around the waist of each vest are different in that “Exhibit B” has only one strip and “Exhibit D” has two strips. In addition the reflective pattern is different on each of the vests.

In view of the foregoing, we have determined that the wrong sample was forwarded with your original ruling request to the CBP, National Commodity Specialist Division, New York. Thus, we recommend that you submit a new ruling request for the sample identified as “Exhibit B”. Furthermore, given the circumstances as described herein and the obvious disparities in the samples submitted by you, we find that a meeting is not necessary at this time.

We find that NY J88289, dated September 22, 2003, correctly described the non-originating fabric for “Exhibit D” as not having a visible coating and properly determined the classification to be in Chapter 54 or headings 5512 through 5516. The garment identified as “Exhibit D” was properly classified in subheading 6217.10.9530, HTSUSA, and was properly denied NAFTA treatment because it failed to undergo the requisite tariff shift.

HOLDING:

NY J88289, dated September 22, 2003, is hereby affirmed.

The subject merchandise, identified as “Exhibit D” is correctly classified in subheading 6217.10.9530, HTSUSA, which provides for, “Other made up clothing accessories; parts of garments or of clothing accessories, other than those of heading 6212: Accessories: Other: Other, Of man-made fibers”. The general column one duty rate is 14.6 percent ad valorem. The textile category is 659. The subject article is ineligible for NAFTA treatment.

The designated textile and apparel category may be subdivided into parts. If so, the visa and quota requirements applicable to the subject merchandise may be affected. Since part categories are the result of international bilateral agreements which are subject to frequent renegotiations and changes, to obtain the most current information available, we suggest your client check, close to the
time of shipment, the Textile Status Report for Absolute Quotas, which is available on the CBP website at www.cbp.gov.

Due to the changeable nature of the statistical annotation (the ninth and tenth digits of the classification) and the restraint (quota/visa) categories, your client should contact the local CBP office prior to importation of this merchandise to determine the current status of any import restraints or requirements.

Sincerely,

Myles B. Harmon, Director

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