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NY K89038




September 3, 2004

CLA-2-61: RR:NC:N3:TA:359: K89038

CATEGORY: CLASSIFICATION

TARIFF NO.: 9819.11.09

Joseph R. Hoffacker
Barthco Trade Consultants
7575 Holstein Avenue
Philadelphia, PA 19153

RE: African Growth and Opportunity Act; women’s wool ponchos; subheading 9819.11.09; U.S. Note 2, Subchapter XIX, Chapter 98; subheading 9819.11.27; U.S. Note 4, Subchapter XIX, Chapter 98

Dear Mr. Hoffacker:

This is in response to your letter of August 26, 2004, on behalf of Ruby Ewe, Inc., requesting a binding ruling on the eligibility of certain women’s ponchos for duty-free treatment under the African Growth and Opportunity Act (“AGOA”).

FACTS:

Ruby Ewe, Inc. plans to import from South Africa women’s knit ponchos classified in subheading 6102.10.0000, of the Harmonized Tariff Schedule of the United States (HTSUS). In South Africa, the wool yarn is spun, the fabric is knit from this yarn, and the garments are cut and sewn. The garments will be imported through the port of Philadelphia, Pennsylvania.

ISSUE:

Whether the apparel, manufactured as described above, is eligible for duty free treatment under AGOA, subheading 9819.11.09 or subheading 9819.11.27.

LAW AND ANALYSIS:

Title I of the Trade and Development Act of 2000, Pub. L 106-200, 114 Stat. 251, May 18, 2000, referred to as the African Growth and Opportunity Act (“AGOA”), seeks to promote trade opportunities between the U.S. and the countries of sub-Saharan Africa. The AGOA provides for the extension of duty-free treatment under the GSP to non-textile articles normally excluded from GSP duty-free treatment that are not import sensitive; and the entry of specific textile and apparel articles free of duty. In order to implement the AGOA, Customs issued Interim Regulations in T.D. 00-67, 65 Fed. Reg. 59668, which became effective October 1, 2000. With regard to the textile and apparel provisions, the law became effective on October 1, 2000, and shall remain in effect through September 30, 2008. See Sec. 112(f), AGOA.

The enhanced trade benefits provided by the AGOA are available to eligible textile and apparel articles imported directly from a country (1) that is designated as a beneficiary sub-Saharan African country and (2) which the U.S. Trade Representative (“USTR”) has determined by a proclamation published in the Federal Register has satisfied the requirements of the AGOA and therefore should be afforded the tariff treatment authorized in such Act. Such countries shall be enumerated in U.S. Note 1, Subchapter XIX, Chapter 98, HTSUS, whenever the USTR issues a Federal Register notice as described herein. See Presidential Proclamation 7350, Annex, dated October 2, 2000, 65 Fed. Reg. 59321.

The Republic of South Africa was designated as a beneficiary sub-Saharan African country under AGOA by Presidential Proclamation 7350. The USTR issued a determination finding that South Africa has adopted an effective visa system and related procedures to prevent unlawful transshipment and the use of counterfeit documents in connection with shipments of textile and apparel articles and has implemented and follows, or is making substantial progress toward implementing and following, the customs procedures required by the AGOA, effective March 7, 2001. See 66 Fed. Reg. 14425, dated March 12, 2001.

Subheading 9819.11.09, HTSUS, provides as follows:

Apparel articles wholly assembled in one or more such countries from fabric wholly formed in one or more such countries from yarn originating in either the United States or one or more such countries (including fabrics not formed from yarns, if such fabrics are classifiable under heading 5602 or 5603 and are wholly formed and cut in one or more such countries), subject to the provisions of U.S. Note 2 to this subchapter.

U.S. Note 2, Subchapter XIX, Chapter 98, HTSUS, provides for a quantitative restriction for apparel articles classified in subheading 9819.11.09 and 9819.11.12. U.S. Note 2(a) and (b), provide:

(a) Imports of apparel articles under subheadings 9819.11.09 and 9819.11.12 shall be limited, in the period beginning on the date announced in a notice published in a Federal Register by the United States Trade Representative and continuing through the close of September 30, 2001, to an aggregate quantity not to exceed 1.5 percent of the aggregate square meter equivalents of all apparel articles imported into the United States in the preceding 12-month period for which data are available. Of that aggregate quantity, an amount not to exceed 1 percent of such aggregate square meter equivalents shall be eligible to enter under such subheadings during the period beginning on the date announced in such Federal Register notice and continuing through the close of December 31, 2000. The remaining 0.5 percent of such aggregate square meter equivalents, together with any quantity remaining unfilled from the 1 percent eligible to enter prior to January 1, 2001, shall be eligible to enter under such subheadings during the period beginning on January 1, 2001 and continuing through the close of September 30, 2001.

(b) Such imports of apparel articles under subheadings 9819.11.09 and 9819.11.12 shall be limited, in each of the seven one-year periods beginning on October 1, 2001, to an aggregate quantity not to exceed the applicable percentage set forth herein of aggregate square meter equivalents of all apparel articles imported into the United States in the preceding 12-month period for which data are available:

12-Month Period Applicable Percentage

October 1, 2001 through September 30, 2002 1.7857 October 1, 2002 through September 30, 2003 2.0714 October 1, 2003 through September 30, 2004 2.3571 October 1, 2004 through September 30, 2005 2.6428 October 1, 2005 through September 30, 2006 2.9285 October 1, 2006 through September 30, 2007 3.2142 October 1, 2007 through September 30, 2008 3.5

In this case, the yarn is spun in South Africa, the fabric is wholly formed and cut in South Africa, and the apparel is wholly assembled in South Africa. Accordingly, the garments would be entitled to be classified in subheading 9819.11.09, HTSUS, subject to the quantitative limits set forth in U.S. Note 2, Subchapter XIX, Chapter 98, HTSUS. The garments are eligible for preferential treatment under the AGOA subject to the quantitative limitations and a valid visa. See TBT-01-018, available at www.agoa.gov for the visa requirements for apparel goods from South Africa. Subheading 9819.11.27, HTSUS, provides as follows:

Handloomed, handmade or folklore textile and apparel goods, under the provisions of U.S. note 4 to this chapter

U.S. Note 4, Subchapter XIX, Chapter 98, HTSUS, states:

For purposes of subheading 9819.11.27, goods entered under this provision must be certified, by a competent authority of a designated beneficiary country enumerated in U.S. note 1 to this subchapter, as eligible products of such country, in accordance with any requirements established by the appropriate U.S. government authority.

At this time, although agreements have been entered into with some of the beneficiary countries, South Africa is not among them. Therefore, although the poncho is handloomed and fully formed and assembled in South Africa, no provision exists at this time, to allow entry into the United States of such goods under the provisions of subheading 9819.11.27. Further information on this may be found at the following website: www.otexa.ita.doc.gov/Trade_Act_2000.htm#AGOA.

HOLDING:

Based on the information provided, the women’s ponchos, manufactured as described in this case, are eligible for duty free treatment under subheading 9819.11.09, HTSUS, provided they are imported directly into the customs territory of the U.S. from a beneficiary country.

This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 C.F.R. 177).

A copy of the ruling or the control number indicated above should be provided with the entry documents filed at the time this merchandise is imported. If you have any questions regarding the ruling, contact National Import Specialist Camille R. Ferraro at 646-733-3049.

Sincerely,

Robert B. Swierupski
Director,

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