CLA-2 RR:CR:TE 966897 TMF
Stacy Bauman
American Shipping Company, Inc.
140 Sylvan Avenue
Englewood Cliffs, NJ 07632
RE: Eligibility of polyester fabric pants and accompanying belt of polyurethane or self-fabric under the African Growth and Opportunity Act (AGOA)
Dear Ms. Bauman:
This is in response to your letter dated December 2, 2003, on behalf of your client, Dress Barn, Inc. in which you requested a binding ruling concerning certain ladies pants with an accompanying belt under the African Growth and Opportunity Act (AGOA). Your request along with one sample was sent to our office.
FACTS:
Style DB3215 is a pair of 100 percent woven polyester women’s pants that have a partially elasticized waistband, belt loops, a front fly opening with zipper closure, side seam pockets, and hemmed leg openings. You state in your submission that the merchandise contains a 100 percent polyester woven lining. However, the sample does not have a lining.
All of the fabric (the body fabric, lining fabric, elastic and pocketing fabric) is made in China. Two belts were submitted: one identified in the submission as polyurethane and one self-fabric. We note that the sample hangtag states PVC, not polyurethane, with regard to the belt. For this ruling, we will treat the sample belt as of polyurethane.
Scenario A: The fabric, elastic for the waistband and pocketing fabric is shipped from China into Lesotho on rolls. The manufacturing process includes all cutting of the fabric and elastic and sewing and finishing the pants in Lesotho. The belt is a polyurethane belt imported from China into Lesotho as a finished product. The finished pants and belt are imported together into the United States from Lesotho.
Scenario B: Same facts as A, with the exception that the belt is a self-fabric belt imported from China into Lesotho as a finished product.
Scenario C: Same facts as A, with the exception of the following:
-The elastic is cut into specific lengths in China and the pocketing
fabric is made into pre-formed pockets in China.
-The belt for the pants is a polyurethane belt imported from China
into Lesotho as a finished product.
Scenario D: Same facts as C, with the exception that the belt is a self-fabric belt that is made in China.
ISSUE:
Whether the subject ladies’ pants with an accompanying belt, which is offered in two styles, qualifies for duty-free treatment under the AGOA. Whether the pre-formed pocketing qualifies as a “finding” or “trimming” under the AGOA. Whether the elastic, which is cut to specific lengths in China and then shipped into Lesotho for insertion into the pant’s waistband, is fabric.
LAW AND ANALYSIS:
The African Growth and Opportunity Act (AGOA) provides certain specified trade benefits for countries of sub-Saharan Africa. These benefits include duty-free treatment for certain non-textile articles previously excluded from preferential treatment under the Generalized System of Preferences, and duty- and quota-free treatment for certain textile and apparel articles which meet the requirements set forth in Section 112 of the Act (codified at 19 U.S.C. 3721). Beneficiary countries are designated by the President of the United States after having met eligibility requirements set forth in the AGOA. Once designated, a beneficiary country is entitled to the duty-free treatment for the designated non-textile articles determined not to be import-sensitive in the context of imports from the beneficiary sub-Saharan African countries. A second designation 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 prevent unlawful transshipment and has adopted an effective visa system, is necessary before a beneficiary country may enjoy the duty- and quota-free benefits extended to textile and apparel articles under the Act. Lesotho was designated a beneficiary country by Presidential Proclamation 7350, published in the Federal Register on October 4, 2000 (65 Fed. Reg. 59321). It was determined to be eligible for textile benefits under the AGOA by the USTR effective April 23, 2001 (66 Fed. Reg. 21192).
The provisions implementing the textile provisions of the AGOA in the Harmonized Tariff Schedule of the United States (HTSUS) are contained, for the most part, in subchapter XIX, Chapter 98, HTSUS (one provision may be found in subheading 9802.00.80, HTSUS). The regulations pertinent to the textile provisions of the AGOA may be found at §§ 10.211 through 10.217 of the Customs Regulations (19 C.F.R. §§ 10.211 through 10.217).
Classification of the Pants and Belts Separately
If imported separately, the self-fabric belt would be classified in subheading 6217.10.9530 Harmonized Tariff Schedule of the United States Annotated, which provides, among other things, for other made up clothing accessories; Of man-made fibers. If imported separately, the polyurethane belt would be classified in subheading 3926.20.9050, HTSUSA, which provides for other articles of plastics and articles of other materials of headings 3901 to 3914: articles of apparel and clothing accessories: other: other, other. The pants, if imported separately, would be classified in subheading 6204.63.3510, HTSUSA, which provides, in pertinent part, for women’s trousers of synthetic fibers.
Classification of Pants and Accompanying Textile Belt
CBP has issued rulings that have addressed whether garments with accompanying textile belts are classifiable as a set or composite good under GRI 3(b). We refer you to HQ 960033, dated January 30, 1997, wherein a vest and belt were classified as composite goods with the vest imparting the essential character; HQ 960047, dated February 20, 1997, wherein a dress, self-fabric belt and shawl were considered to be composite goods; HQ 959342, dated July 18, 1996, wherein a women’s dress and self-fabric belt were classified as composite goods with the dress imparting the essential character; HQ 954073, dated September 23, 1993, wherein CBP classified a dress and textile belt, which were color coordinated and constructed of the same fabric, as a composite good, with the dress imparting the essential character to the item; HQ 956540, dated September 7, 1994, wherein CBP classified women's shorts with accompanying belts as composite goods. For classification purposes, the subject pants and accompanying self-fabric belt are adapted to each other in that the loops are sized to accommodate the belt. Further, they are not of a type normally sold separately. Thus, we find the pants and accompanying textile belt combination to be "composite goods" and classifiable together with the pants imparting the essential character.
Classification of Pants and Accompanying Non-Textile Belt
With regard to the pants and accompanying non-textile polyurethane belt, CBP (formerly, U.S. Customs Service) has issued numerous rulings on the classification of garments with accompanying non-textile belts that are classified as goods put up as sets for retail sale. We refer you to New York Ruling Letter (NY) I85652, dated September 20, 2002, classifying cotton as a woven denim women’s shorts and accompanying belt made of braided suede leather; Headquarters Ruling Letter (HQ) 084423, dated August 3, 1989, HQ 084184, dated July 28, 1989, and HQ 083988, dated June 15, 1989, all which classify garments (shorts, trousers and shorts) that have accompanying non-textile belts as sets rather than composite goods; HQ 083853, dated May 17, 1989, classifying boys’ trousers and woven acrylic belt as composite goods; and HQ 557366 dated October 6, 1993, classifying men’s cotton pants containing a vinyl belt as a set. In accordance with previous decisions, the subject pants and non-textile polyurethane belt are classifiable as a set put up for retail sale.
AGOA Eligibility of Pants
We consider subheading 9819.11.12, HTSUSA, which provides for:
Apparel articles wholly assembled, or knit-to-shape and wholly assembled or both, in one or more such lesser developed countries enumerated in U.S. note 2(d) to this subchapter, subject to the provisions of U.S. note 2 to this subchapter, regardless of the country of origin of the fabric or the yarn used to make such articles, if entered during the period beginning on the date announced in a Federal Register notice issued by the United States Trade Representative and continuing through September 30, 2004, inclusive.
In this instance, the production process of the pants occurs in Lesotho, which is listed in U.S. Note 2(d) as qualifying for designation as a lesser-developed beneficiary country.
Subheading 9819.11.12, HTSUSA, allows for the use of foreign yarn or fabric in the production of apparel articles, and specifically provides that the country of origin of the fabric is not a consideration. Since the country of origin of the fabric is not relevant to the receipt of AGOA lesser developed beneficiary country preferential tariff and quota treatment (provided the other requirements of the Act are met), the instant pants qualify for AGOA preferential treatment under subheading 9819.11.12, HTSUSA, when produced as described in scenarios A and B.
Eligibility of Pants Under Scenarios C & D
In scenarios C and D, the pants contain pre-formed pockets from China and elastic in the waistband, which has been cut to specific lengths in China prior to importation into Lesotho. Although the elastic is not entered into Lesotho on a roll in fabric form, it has unfinished edges and is considered to be fabric and not a “made up article.” See HQ 562451 dated September 4, 2002, classifying women’s trousers made from foreign-origin elastic fabric from the Far East which is entered on rolls to be eligible for AGOA preference.
With regard to the pockets, it is unclear from your submission as to whether they are entered as subassembled pockets or cut components into Lesotho from China. However, in their condition as imported, they are entered as components and not as fabric. Further, the subject pockets are not “findings” or “trimmings” analogous to the examples set forth in Note 3, Subchapter XIX, Chapter 98, HTSUSA. See HQ 559552, dated February 14, 1996, ruling that shoulder pads and sleeve headings are excluded under subheading 9802.00.90, HTSUSA (formerly known as the “Special Regime Program” and Special Access Program), and stating that pocketing is specifically excluded as findings or trimmings by the Committee for the Implementation of Textile Agreements (CITA). For further detail on the CITA directive, please see 52 Federal Register 26057. Therefore, as the pants contain pre-formed, non-origin pockets, they are precluded from AGOA eligibility under scenarios C and D.
Inclusion of a Belt with the Pants and AGOA Eligibility in Scenarios A & B
In scenario A, the pants will be accompanied with a polyurethane belt imported from China into Lesotho as a finished product. CBP has previously determined that “[t]here are no requirements set forth with regard to non-textile components which may be used in the production of the apparel except for those items which would be considered "findings” or “trimmings." See HQ 966495, dated July 3, 2003, determining that the PVC belt was an accessory and not a “finding” or “trimming” and that its inclusion would not preclude the women’s polyester cotton pants from AGOA eligibility; HQ 966587, dated September 23, 2003, following HQ 966495, supra. In the case of scenario A, the inclusion of the polyurethane belt with the instant pants would not preclude the pants and belt combination from receiving AGOA preferential treatment.
In scenario B, the pants have an accompanying textile self-fabric belt. CBP has addressed whether a foreign-origin textile belt that is imported with a garment is eligible for AGOA preference. We refer you to HQ 562349, dated September 12, 2003, ruling that although a pair of women’s pants and accompanying foreign-origin belt were composite goods, the belt was not a “finding” or “trimming” and that the combination was not eligible for AGOA preference as imported together. We find the same analysis of HQ 562349, supra, applies in the instant case which involves scenario B in which the pants have an accompanying textile self-fabric belt which is imported from China into Lesotho as a finished product. The subject self-fabric textile belt, like the belt of HQ 562349 is not a “finding” or “trimming” for purposes of the AGOA. Therefore, the instant self-fabric textile belt, like the belt of HQ 562349, is merely an accessory which enhances the pants, not for use in a manner similar to buttons or zippers, which are used to fasten or close garments. Thus, under scenario B, although the pants are wholly assembled, if they are imported with the accompanying textile self-fabric belt, they are precluded from AGOA eligibility.
HOLDING:
In scenario A, the pants and belt combination (which consists of accompanying polyurethane belt and the subject ladies pants, identified as style #DB3215), would be classifiable together as a set put up for retail sale with the pants imparting the essential character. They would be eligible for AGOA preferential treatment under subheading 9819.11.12, HTSUSA, provided the ladies' pants otherwise meet the requirements for preferential treatment under the AGOA.
In scenarios B, C and D, the subject pants and belt combinations (which consists of either a polyurethane belt or self-fabric belt), identified as style #DB3215, would be precluded from AGOA eligibility. They would be classified in subheading 6204.63.3510, HTSUSA, which provides, in pertinent part, for women’s trousers of synthetic fibers, dutiable at 28.6 percent ad valorem.
In scenarios B and D, the pants and textile self-fabric belt combination would be classified together as composite goods, with the pants imparting the essential character. In scenario C, the pants and polyurethane belt combination would be classified together as a set put up for retail sale goods, with the pants imparting the essential character.
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 CBP officer handling the transaction.
Sincerely,
Myles B. Harmon, Director
Commercial Rulings Division