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HQ 561970

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September 17, 2002

MAR-2-05 RR:IA 561970 RFC/CW

CATEGORY: CLASSIFICATION

TARIFF NO.: 6203.43.4030; 6211.33.0040; 9802.11.06

Mr. Donald Cilley
Director of Apparel Operations
Burlington Performance Wear
3330 West Friendly Avenue
Greensboro, NC 27410

RE: Classification & Eligibility for Preferential Tariff Treatment under CBTPA for Certain Men’s Pullover Shirts and Men’s Running Shorts

Dear Mr. Cilley:

This is in reference to your undated requests (received on November 29, 2000), on behalf of the Burlington Performance Wear, for a binding administrative ruling on the classification under the Harmonized Tariff Schedule of the United States (HTSUS) and on the eligibility for preferential tariff treatment under the United States-Caribbean Basin Trade Partnership Act (CBTPA) for certain men’s pullover shirts and running shorts. We regret the delay in responding.

FACTS:

Two types of garments will be assembled in Costa Rica: certain men’s pullover shirts and certain men’s running shorts.

Men’s Pullover Shirts

The facts as presented are as follows:

A pullover shirt will be assembled in Costa Rica.

The shell fabric is woven in the United States from U.S. yarn.

The shell fabric will be sent to Costa Rico for cutting and assembly.

The thread and most of the trim will be U.S. origin.

A flat knit collar (knitted in strips and sewn onto the garment) and a knit rib (1 X 1 rib) that must be cut to size for the bottom of the sleeve and the hem of the garment.

Both of these knitted items will be made from U.S. yarn, knitted and finished in Costa Rica.

The non-U.S. components will fall below the 25 percent of the cost of components specified in the findings and trimmings section of the CBTPA.

Men’s Running Shorts

The facts as presented are as follows:

A lined running short will be assembled in Costa Rica.

The shell fabric is woven in the United States from U.S. yarn.

The thread and most of the trim will be U.S. origin.

The knit lining will be of U.S. yarn, knitted and finished in Costa Rica.

The lining and any non-U.S. trim items will fall below the 25 percent of the cost of components specified in the findings and trimmings section of the CBTPA.

ISSUES:

Where are the above-described men’s pullover shirts and men’s running shorts classified in the HTSUS?

Whether the above-described men’s pullover shirts and running shorts are eligible for preferential tariff treatment under the CBTPA?

LAW AND ANALYSIS:

Classification of the Merchandise

Merchandise imported into the United States is classified under the Harmonized Tariff Schedule of the United States (HTSUS). The tariff classification of merchandise under the HTSUS is governed by the principles set forth in the General Rules of Interpretation (GRIs) and, in the absence of special language or context which otherwise requires, by the Additional U.S. Rules of Interpretation. The GRIs and the Additional U.S. Rules of Interpretation are part of the HTSUSA and are to be considered statutory provisions of law for all purposes. See Sections 1204(a) and 1204(c) of the Omnibus Trade and Competitiveness Act of 1988 (19 U.S.C. § 1204(a), 1204(c)).

GRI 1 requires that classification be determined first according to the terms of the headings of the tariff schedule (i.e., (1) merchandise is to be classified under the 4-digit heading that most specifically describes the merchandise; (2) only 4-digit headings are comparable; and (3) merchandise must first satisfy the provisions of a 4-digit heading before consideration is given to classification under a subheading within this 4-digit heading) and any relative section or chapter notes and, provided such headings or notes do not otherwise require, then according to the other GRIs.

GRI 6 prescribes that, for legal purposes, GRIs 1 to 5 shall govern, mutatis mutandis, classification at subheading levels within the same heading. Therefore, merchandise is to be classified at equal subheading levels (i.e., at the same digit level) within the same 4-digit heading under the subheading that most specifically describes or identifies the merchandise.

The Explanatory Notes to the Harmonized Commodity Description and Coding System (hereinafter "Harmonized System") represent the official interpretation of the Customs Cooperation Council on the scope of each heading. See H.R. Conf. Rep. No. 100-576, 100th Cong., 2d Sess. 549 (1988); 23 Customs Bulletin No. 36, 3 (T.D. 89-90, September 6, 1989), 59 F.R. 35127 (August 23, 1989). Although not binding on the contracting parties to the Harmonized System Convention or considered to be dispositive in the interpretation of the Harmonized System, the Explanatory Notes should be consulted on the proper scope of the Harmonized System. Id.

Classification of Certain Men’s Pullover Shirts:

A review of the HTSUS reveals that the men’s pullover shirts are potentially classified in two provisions: heading 6205 as men’s shirts and heading 6211 as other men’s garments.

The General Explanatory Notes to chapter 62 state, in part, that:

Shirts and shirt-blouses are garments designed to cover the upper part of the body, having long or short sleeves and a full or partial opening starting at the neckline. (Emphasis added.)

General Explanatory Notes to Chapter 62 to the Harmonized System (Third edition, 2002), page 1071.

The U.S. Customs Service has classified men’s pullover shirts not having a full or partial opening starting at the neckline outside of heading 6205 on the basis that they did not meet the above-mentioned description. See, e.g., HQ 08773 (February 22, 1991), HQ 952024 (September 15, 1992), and HQ 957877 (September 14, 1995).

In the instant case, the above-mentioned men’s pullover shirts do not have a full or partial opening starting at the neckline. Accordingly, they are classified outside of heading 6205.

Pursuant to GRI 1, the above-described men’s pullover shirts are classified in heading 6211. Pursuant to GRIs 1 and 6, the shirts are classified in HTSUS subheading 6211.33.0040.

Classification of Certain Men’s Shorts:

A review of the HTSUS reveals that heading 6302 provides for men’s shorts. Pursuant to GRI 1, the above-described men’s shorts are classified in heading 6302. Pursuant to GRIs 1 and 6, the shorts are classified in HTSUS subheading 6203.43.4030.

Eligibility for Preferential Tariff Treatment under CBTPA

The Trade and Development Act of 2000 was signed into law on May 18, 2000 (Pub. L. 106-200, 114 Stat. 251). Title II of the Act concerns trade benefits for the Caribbean Basin and is referred to as the United States-Caribbean Basin Trade Partnership Act (“CBTPA”). Section 211 of the CBTPA amended section 213(b) of the Caribbean Basin Economic Recovery Act (CBERA) (19 U.S.C. 2703(b)) to provide expanded trade benefits during a “transition period” to designated countries in the Caribbean Basin by eliminating tariffs and quantitative restrictions on specific textile and apparel articles and by extending NAFTA duty treatment standards to non-textile articles that previously were ineligible for preferential treatment under the CBERA. “Transition period” is defined in section 213(b)(5)(D) as meaning, with respect to a designated CBTPA country, the period that begins on October 1, 2000, and ends on the earlier of September 30, 2008, or the date on which a free trade agreement enters into force with respect to the U.S. and the CBTPA country.

Presidential Proclamation 7351 dated October 2, 2000, published in the Federal Register on October 4, 2000 (65 FR 59329), implemented the CBTPA by designating the eligible CBTPA countries and amending Chapter 98, HTSUS (including the creation of new subchapter XX) to facilitate the entry of the specific textile and apparel articles eligible for preferential treatment under the CBTPA. The enhanced trade benefits provided by the CBTPA are available to eligible articles imported directly from a country (1) that is designated as a CBTPA beneficiary country and (2) which the U.S. Trade Representative (“USTR”) has determined has implemented and follows, or is making substantial progress toward implementing and following certain customs procedures that allow U.S. Customs to verify the origin of the articles. Costa Rica has been determined to meet the above criteria.

Please note that section 3107(a) of the Trade Act of 2002 (Pub. L. 107-210, 116 Stat. 933), signed into law on August 6, 2002, modified the treatment accorded to designated CBTPA countries under section 213(b) of the CBERA.

In addition, Interim Customs Regulations to implement the trade benefit provisions of section 211 of the CBTPA were published in the Federal Register as T.D. 00-68 on October 5, 2000 (65 FR 59650).

Section 213(b)(2)(A) of the CBERA specifies the textile and apparel articles to which preferential treatment applies under the CBTPA during the transition period. We are assuming that your inquiry relates to section 2103(b)(2)(A)(ii) of the CBERA.

Section 213(b)(2)(A)(ii), as recently amended by section 3107(a) of the Trade Act of 2002, provides that preferential treatment applies to :

(ii) Apparel article sewn or otherwise assembled in one or more CBTPA beneficiary countries with thread formed in the United States from fabrics wholly formed in the United States and cut in one or more CBTPA beneficiary countries from yarns wholly formed in the United States, or from components knit-to-shape in the United States from yarns wholly formed in the United States, or both (including fabrics not formed from yarns, if such fabrics are classifiable under heading 5602 or 5603 of the HTS and are wholly formed in the United States). Apparel articles entered on or after September 1, 2002, shall qualify under the preceding sentence only if all dyeing, printing, and finishing of the fabrics from which the articles are assembled, if the fabrics are knit fabrics, is carried out in the United States. Apparel articles entered on or after September 1, 2002, shall qualify under the first sentence of this clause only if all dyeing, printing, and finishing of the fabrics from which the articles are assembled, if the fabrics are woven fabrics, is carried out in the United States.

However, section 213(b)(2)(A)(vii) provides, in pertinent part, as follows:

EXCEPTION FOR FINDINGS AND TRIMMINGS.—(aa) An article otherwise eligible for preferential treatment under this paragraph shall not be ineligible for such treatment because the article contains findings or trimmings of foreign origin, if such findings and trimmings do not exceed 25 percent of the cost of the components of the assembled article. Examples of findings and trimmings are sewing thread, hooks and eyes, snaps, buttons, “bow buds”, decorative lace trim, elastic strips, and zippers, including zipper tapes and labels. Elastic strips are considered findings or trimmings only if they are each less than 1 inch in width and used in the production of brassieres.

In the case of an article described in clause (ii) of this subparagraph, sewing thread shall not be treated as findings or trimmings under this subclause.

(II) CERTAIN INTERLINING.-(aa) An article otherwise eligible for preferential treatment under this paragraph shall not be ineligible for such treatment because the article contains certain interlinings of foreign origin, if the value of such interlinings (and any findings and trimmings) does not exceed 25 percent of the cost of the components of the assembled article.

(bb) Interlinings eligible for the treatment described in division include only a chest type plate, ‘hymo’ piece, or ‘sleeve header’, of woven or weft-inserted warp knit construction and of coarse animal hair or man-made filaments.

Applying the foregoing to the facts presented in regard to the men’s pullover shirts, neither the flat knit collar nor the knit rib will be wholly formed in the U.S., as required by section 213(b)(2)(A)(ii). In addition, neither the knit collar nor the knit rib qualify for the statutory exception for “findings or trimmings.” In our opinion, the collar and rib are not analogous to the examples of “findings and trimmings” set forth in section 213(b)(2)(A)(vii)(aa). See, for example, Headquarters Ruling Letter (HRL) 558954 dated June 30, 1995 (the collar of a women’s jacket is not considered a “finding or trimming” for purposes of subheading 9802.00.90, HTSUS).

Concerning the men’s running shorts, the knit lining will not be wholly formed in the U.S., as required by section 213(b)(2)(A)(ii). In addition, the knit lining does not qualify for the exceptions set forth in section 213(b)(2)(A)(vii) for “findings or trimmings” and interlinings. Thus, in regard to the facts presented, neither the men’s pullover shirts nor the men’s running shorts would qualify for duty-free treatment under section 213(b)(2)(A)(ii) of the CBERA.

HOLDING:

1. The above-described men’s pullover shirts are classified in HTSUS subheading 6211.33.0040 and the men’s running shorts are classified in HTSUS subheading 6203.43.4030.

2. For the reasons set forth above, neither the above-described men’s pullover shirts nor the men’s running shorts are eligible for preferential tariff treatment under the CBTPA.

A copy of this ruling letter should be attached to the entry documents filed at the time the goods are entered. If the documents have been filed without a copy, this ruling should be brought to the attention of the Customs Service officer handling the transaction.

Sincerely,

Myles B. Harmon, Acting Director
Commercial Rulings Division

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See also:

• Tariff No.: 6203.43.40 - Men's or boys' trousers, breeches & shorts, of synthetic fibers, con under 15% wt down etc, cont under 36% wt wool, n/water resist, not k/c
• Tariff No.: 6211.33.00 - Men's or boys' track suits or other garments nesoi, not knitted or crocheted, of man-made fibers
• Tariff No.: 9802.00.90 - Textile and apparel goods, assembled in Mexico in which all fabric components were wholly formed and cut in the United States, etc.