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HQ 966317

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June 9, 2003

CLA-2 RR:CR:TE 966317 TF

CATEGORY: CLASSIFICATION

TARIFF NO.: 9820.11

Ronald Gerdes
Sandler, Travis & Rosenberg, P.A.
1300 Pennsylvania Avenue, N.W.
Washington, D.C. 20004-3002

RE: rubber tape; Caribbean Basin Trade Partnership Act; HQ 561868

Dear Mr. Gerdes:

This is in response to your letter of March 17, 2003, on behalf of your client, Elastomer, Inc., in which you requested a binding ruling on the status of certain rubber tape under the Caribbean Basin Trade Partnership Act (hereinafter referred to as “CBTPA”). Your request along with three samples was sent to our office.

FACTS:

Elastomer, Inc. produces rubber tape in India that is used in the manufacture of various garments (but not brassieres), with a specific use to ensure sufficient tension typically in the leg and/or arm openings of the submitted three sample garments which you provided to our office.

The three samples, i.e., a bathing suit, a pair of men’s underwear and a pair of sweatpants, incorporate your client’s rubber tape. You indicated that only three samples would be submitted so that our office would not be overwhelmed in issuing a response. The rubber tape in the three samples measures respectively as follows:

-bathing suit-1/4 inch in width
-men’s underwear-1/4 inch in width (in leg openings) -sweatpants-1/2 inch in width (bottom of legs)

You stated that your request was originally submitted in August 2000, but in early February 2001, you requested a decision based on the facts under the Special Regime Program (“SR”), and our office subsequently cancelled your CBTPA request and issued Headquarters Ruling Letter (HQ) 561868, dated July 10, 2001, which determined the instant merchandise was a “finding” under subheading 9802.00.90, Harmonized Tariff Schedule of the United States Annotated (“hereinafter referred to as “HTSUSA”).

You stated that you found a draft decision on this issue under the CBTPA which was erroneously issued on our website and you noted that the holding of the draft was limited to bathing suits. You are requesting that the holding in the instant ruling simply refer to “garments” in lieu of bathing suits to “ensure that the outcomes of the CBTPA and SR rulings are interpreted the same.”

ISSUE:

Whether the subject rubber tape used in the three sample garments’ leg and/or arm openings is considered a “finding” under the CBTPA.

LAW AND ANALYSIS:

The United States-Caribbean Basin Trade Partnership Act (CBTPA) provides certain specified trade benefits for countries of the Caribbean region. The Act extends North American Free Trade Agreement (NAFTA) duty treatment standards to non-textile articles that previously were ineligible for preferential treatment under the Caribbean Basin Economic Recovery Act (CBERA) and provides for duty-free and quota-free treatment for certain textile and apparel articles which meet the requirements set forth in Section 211 of the CBTPA (amended 213(b) of the CBERA, codified at 19 U.S.C. 2703(b)). Beneficiary countries are designated by the President of the United States after having met eligibility requirements set forth in the CBPTA. Eligibility for benefits under the CBTPA is contingent on designation as a beneficiary country by the President of the United States and a determination by the United States Trade Representative (USTR), published in the Federal Register, that a beneficiary country has taken the measures required by the Act to implement and follow, or is making substantial progress toward implementing and following, certain customs procedures, drawn from Chapter 5 of the NAFTA, that allow the United States to verify the origin of products. Once both these designations have occurred, a beneficiary country is entitled to preferential treatment provided for by the CBTPA.

The provisions implementing the textile provisions of the CBTPA in the Harmonized Tariff Schedule of the United States (HTSUS) are contained, for the most part, in subchapter XX, Chapter 98, HTSUS (two provisions may be found in subheading 9802.00.80, HTSUS). The regulations pertinent to the textile provisions of the CBTPA may be found at §§10.221 through 10.228 of the Customs Regulations (19 CFR 10.221 through 10.228).

You did not indicate the name of the CBTPA country where the goods are assembled. Provided the country has been designated by Presidential Proclamation (as published in the Federal Register) and meets the second criteria concerning customs procedures by the USTR, the CBTPA country will be eligible for benefits under the CBTPA.

Although you requested a determination as to whether the instant rubber tape qualifies as a finding under the CBTPA, you did not request whether the sample garments qualify for preference under the CBTPA. Therefore, it is our position that we will rule only on whether the subject rubber tape, as used in the three sample garments before us (a bathing suit, a pair of men’s underwear and a pair of sweatpants), qualifies as a “finding” under the CBTPA.

Classification of the Subject Rubber Tape

The instant rubber tape is manufactured in India. Customs has previously determined that this article is classifiable in subheading 4008.21.0000, HTSUSA, which provides for “Plates, sheets, strip, rods and profile shapes, of vulcanized rubber other than hard rubber: Of noncellular rubber: Plates, sheets and strip.” See HQ 561868, dated July 10, 2001. Further, we have already determined that the subject tape is not a fabric, nor an “elastic strip” as provided by Note 3(b), Subchapter XX, Chapter 98, HTSUSA. Id. (ruling that the elastic strip language referred therein was limited by the Committee for the Implementation of Textile Agreements (“CITA”) to apply only to narrow elastic fabric measuring less than one inch which is used solely in the production of brassieres).

You requested our determination as to whether the subject rubber tape (based on its use in the three sample garments) qualifies as a “finding” for purposes of the CBTPA. Customs has previously determined that substantially similar foreign-origin rubber tape used in the leg and/or arm openings of garments qualifies as a “finding or trimming” under the CBTPA. See HQ 966239, dated May 16, 2003; see also HQ 561868, dated July 10, 2001 (holding that the instant rubber tape was eligible for Special Regime preference in subheading 9802.00.90, HTSUSA.)

Finding and Trimming

Note 3(a)(i), Subchapter XX, Chapter 98, HTSUSA, provides that an article shall not be ineligible for preferential treatment if it contains findings or trimmings of foreign origin, if the value of such findings and trimmings does not exceed 25 percent of the cost of the components of the assembled article. “Findings and trimmings" include, but are not limited to:

[H]ooks and eyes, snaps, buttons, "bow buds," decorative lace trim, elastic strips (but only if they are each less than 1 inch in width and are used in the production of brassieres), zippers (including zipper tapes), labels, and sewing thread except in the case of an article described in paragraph (a)(3) or (a)(12) of this section. See 19 CFR 10.223(b)(1)(i)(A).

Thus, if the subject rubber tape is a “finding”, and provided its value does not exceed 25 percent of the cost of the components of the garments that utilize the subject rubber tape, its country of manufacture will be immaterial.

In this regard, Customs has previously held that rubber tape used in the assembly of the leg and/or arm openings of garments was a "finding" as it provides secure fittings around the leg and/or arm openings. See HQ 966239, supra. In HQ 559552, dated February 14, 1996, Customs held that reinforcing tape "which purpose is to add strength to the armhole seam," is considered a "finding" under the subheading 9802.00.90 provision as "it is analogous to zipper tape, and is more of a necessity in constructing the garment such as the use of buttons, hooks, etc." The instant rubber tape is analogous to the reinforcement tape of HQ 559552 that is used in the construction of a garment. Accordingly, it is our opinion that the foreign origin rubber tape, as used in the three sample garments before us, may be considered a "finding" for purposes of the CBTPA.

HOLDING:

The foreign-origin rubber tape, as used in the three sample garments (a bathing suit, a pair of men’s underwear and a pair of sweatpants) may be considered a "finding" for purposes of the CBTPA. The use of the foreign origin rubber tape in the garments at issue would not render the garments ineligible for preferential treatment under the CBTPA provided the garments otherwise met the requirements for classification within a CBTPA provision and the value of the rubber tape and all of the findings and trimmings did not exceed 25 percent of the total cost of the components of the garments.

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 Customs officer handling the transaction.

Sincerely,

Myles B. Harmon, Director
Commercial Rulings Division


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See also:

• Tariff No.: 4008.21.00 - Plates, sheets and strip of vulcanized, noncellular rubber, other than hard rubber
• Tariff No.: 9802.00.80 - U.S. articles assembled abroad, which have not lost their physical identity or have not advanced in value or improved in condition abroad
• 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.