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HQ 967036




May 10, 2004

CLA-2 RR:CR:TE 967036 TMF

CATEGORY: CLASSIFICATION

TARIFF NO.: 6110.20.2065

Port Director
Customs Border and Protection
200 E. Bay Street
Charleston, SC 29401-2611

RE: Eligibility of boys’ cotton knitted short sleeve tipped cotton crew tees containing foreign-origin collars under the African Growth and Opportunity Act (AGOA); HQ 966650; HQ 562572

Dear Sir or Madame:

This is in reply to your correspondence forwarding Application for Further Review of Protest (AFR) 1601-03-100462, filed by the GAP, Inc. The protestant forwarded a sample to our office for our review.

FACTS:

The protest and request for Application for Further Review (hereinafter “AFR”), which was timely filed on September 24, 2003 is against Customs and Border Protection’s (CBP) classification and liquidation on August 29, 2003 of an entry containing boys’ cotton knitted crew tees, identified as style #191106, in subheading 6110.20.2065, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), which provides for “Sweaters, pullovers, sweatshirts, waistcoats (vests) and similar articles, knitted or crocheted: Of cotton: OtherOther: Other: men’s or boys’, dutiable at 17.3 percent ad valorem.

The protestant asserted in their “Attachments to Section 514 Protest for Further Review” that proper classification of the merchandise is in subheading 9819.11.12, HTSUSA, which provides for duty-free treatment of apparel goods under the AGOA.

The protestant submitted a sample garment of a similar style along with crew collar fabric samples. The protestant indicated that although the fabric samples are not exact to the garments submitted in the entry at issue, they are similar. The specification sheet submitted with the sample describes the garment, which is identified as style #200283 LS1146, as a “Boy’s S/S Tipped Collar Crew Tee”, which is made in Lesotho from 100 percent cotton jersey fabric. The sample is a size 8 for boys and the net weight is 220 grams per square meter.

The Multiple Country Declaration sheet states that the manufacturing and/or processing operations which occur in Lesotho, consist of cutting, sewing, trimming, checking, ironing and packing. We presume the country of origin of the collars is Hong Kong as the Multiple Country Declaration sheet is unclear as to this fact.

ISSUE:

Whether the Application for Further Review of Protest No. 1601-03-100462 meets the requirements for review by Headquarters pursuant to 19 C.F.R. § 174.24.

LAW AND ANALYSIS:

The criteria required for the granting of a request for further review are set forth in 19 C.F.R. §174.24 of the Customs Regulations. This section states, in pertinent part, that further review of a protest which otherwise would be denied by the Port Director will be accorded to a party filing an application for further review which meets the requirements of [section] 174.25 when the decision against which the protest was filed:

(a) Is alleged to be inconsistent with a ruling of the Commissioner of Customs or his designee, or with a decision made at any port with respect to the same or substantially similar merchandise;

(b) Is alleged to involve questions of law or fact which have not been ruled upon by the Commissioner of Customs or his designee or by the Customs courts;

(c) Involves matters previously ruled upon by the Commissioner of Customs or his designee or by the Customs courts but facts are alleged or legal arguments presented which were not considered at the time of the original ruling; or

(d) Is alleged to involve questions which the Headquarters Office, United States Customs Service, refused to consider in the form of a request for internal advice pursuant to § 177.11(b)(5) of this chapter.

In their “Attachment to Section 514, Protest For Further Review”, the protestant indicates that CBP has not considered this issue prior to their protest. We disagree. CBP has issued prior rulings involving the issue of whether foreign-origin flat knit fabric collars incorporated into a shirt garment qualify for duty-free benefits under subheading 9819.11.12, HTSUSA. See Headquarters Ruling Letter (HQ) 966584, dated September 22, 2003 (denying AGOA preference to men’s golf shirts which contained foreign origin collars made from flat knit fabric); HQ 966634, dated September 9, 2003 (ruling that by application of GRI 2(a), HTSUSA, a garment incorporating rib knit fabric which contained pre-marked lines of demarcation that indicate where to cut to separate the section which would be further cut using a template were knit to shape components and ineligible for AGOA); HQ 965961, dated January 15, 2003 (denying AGOA eligibility to Lesotho-made men’s and boy’s knit shirts which contain Taiwanese-origin collars and cuffs); HQ 965871, dated September 25, 2002 (denying AGOA eligibility to men’s knit shirts using Asian-sourced collars, cuffs and accessories).

In each of the aforementioned rulings involving garments containing foreign-origin flat knit fabric collars, CBP determined that the use of foreign origin textile components would preclude apparel from receiving AGOA benefits within subheading 9819.11.12, HTSUSA.

In our determination as to whether AFR is warranted in the case at bar, we find that the instant protest does not contain any relevant statements or evidence that substantiate that the subject protest contains distinguishable facts or legal arguments from any prior decisions issued by CBP. Rather, the subject protest involves facts and legal arguments that have been raised in prior classification determinations that pertain to substantially similar merchandise. Further the submitted similar sample collars resemble the collars described in HQ 966650 and HQ 966584, see supra as well as HQ 562572 dated June 16, 2003 (which determined that similar collars made on a weft knit machine were “garment parts” in subheading 6117.90.9020, HTSUSA, and not fabric which would allow the incorporating garment to be eligible for duty-free benefits under subheading 9802.00.0080, HTSUSA.)

Based on the aforementioned reasons, we find that the Protestant fails to meet the criteria of 19 C.F.R. 174.24. Therefore, the Protestant’s request for further review should not have been granted.

HOLDING:

The Protestant has failed to meet the requirement of 19 C.F.R. § 174.24. Accordingly, the Application for Further Review of Protest No. 1601-03-100462 is DENIED.

Accordingly, the protest file is being returned for appropriate action by your office. For your information, we agree with your classification recommendation. If upon your review, you still hold that opinion, the protest should be denied.

In accordance with the Protest/Petition Processing Handbook (CIS HB, January 2002, pp. 18 and 21), you are to mail this decision, together with the Customs Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with the decision must be accomplished prior to mailing of the decision. Sixty days from the date of the decision the Office of Regulations and Rulings will make the decision available to CBP personnel, and to the public on the CBP Home Page on the World Wide Web at www.cbp.gov, by means of the Freedom of Information Act, and other methods of public distribution.

Sincerely,

Myles B. Harmon, Director
Commercial Rulings Division

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