HQ 966087

February 28, 2003

# CLA-2 RR:CR:TE 966087 jsj

CATEGORY: Classification

TARIFF NO.: 9819.11.09

Mrs. Liesl Fletcher

Jambo Kids Clothing

P.O. Box 28737

DANHOF 9310

Free State

Republic of South Africa

Re: African Growth and Opportunity Act; "Unisex Garments (3 to 6 years)
-- Knit Fabric"; Apparel Assembled From Regional Fabric; 19 U.S.C. 3721
(b)(3); Chapter 98, Subchapter XIX, HTSUSA; Subheading 9819.11.09,
HTSUSA; 19 C.F.R. 10.211 et seq.

Dear Mrs. Fletcher:

The purpose of this correspondence is to respond to your request dated
November 26, 2002. The correspondence in issue requested, on the behalf
of Jambo Kids Clothing, a binding ruling addressing the eligibility of
merchandise described as "Unisex Garments (3 to 6 years) -- Knit Fabric"
to receive preferential tariff and quota treatment pursuant to the
African Growth and Opportunity Act (AGOA).

This ruling is being issued subsequent to the following: (1) A review of
your submission dated November 26, 2002, which included undated and
un-addressed correspondence from your company, sketches of the
sweatpants and knit tops, correspondence directed to you from your yarn
and fabric supplier dated 1/10/02, and correspondence directed to you
from the South African Revenue Service dated 2002-11-08; and (2)
Electronic mail correspondence between you and a member of my staff
dated January 17 and 24, 2003.

FACTS

The articles in issue, as identified by Jambo Kids Clothing, are "Unisex
Garments (3 to 6 years) -- Knit Fabric." The garments include: (1)
"Sweatshirts" with round necks, collars or hoods; (2) Sweatpants with
elastic at the waist; and (3) "Long sleeve T-shirts."

The garments are made of 220 gm brushed fleece or 160 gm single jersey
100 percent cotton knit fabric. The yarn is spun and knitted into fabric
in South Africa. The fabric is screen printed, cut and assembled into
garments in South Africa. The garments, subsequent to assembly, are
over-dyed in South Africa.

The sweatpants will have "elastic" at the waistband. The "elastic" is an
elastic fabric composed of both yarn and rubber. The yarn is spun and
the rubber is made in South Africa. The completed elastic fabric used in
the waistband is formed in South Africa.

ISSUE

Are the "sweatshirts," sweatpants and "long sleeve T-shirts" made of 100
percent cotton spun into yarn, knitted into fabric, printed, cut,
assembled and over-dyed in South Africa eligible for preferential tariff
and quota treatment pursuant to the African Growth and Opportunity Act ?

LAW AND ANALYSIS

The United States agency responsible for initially interpreting and
applying the Customs laws addressing the importation of goods, including
the United States Code, the Code of Federal Regulations and the
Harmonized Tariff Schedule of the United States Annotated (HTSUSA), is
the U.S. Customs Service.[^1] The federal law subject to interpretation
and application in this ruling letter is the African Growth and
Opportunity Act. *See* 19 U.S.C. 3701 et seq. The AGOA was initially
enacted as Title I of the Trade and Development Act of 2000, Pub. L.
106-200, 114 Stat. 251 (May 18, 2000) to promote "increased trade and
investment between the United States and sub-Saharan Africa." 19 U.S.C.
3702 (1). The Act was amended in the Trade Act of 2002, Pub. L. 107-210,
116 Stat. 933 (Aug. 6, 2002).

The AGOA provides for the extension of the Generalized System of
Preferences (GSP) duty-free treatment to non-textile articles normally
excluded from GSP duty-free treatment and for preferential treatment of
certain textile and apparel articles described in the Act. The textile
and apparel provisions of the AGOA became effective on October 1, 2000,
and remain in effect until September 30, 2008. The Customs Service
issued Interim Regulations implementing the AGOA that became effective
on October 1, 2001. *See* 19 C.F.R. 10.211 et seq.; *See also* T.D.
00-67; 65 Fed. Reg. 59668 (2000).

Preferential treatment of certain textile and apparel articles is
available under the AGOA for articles imported directly[^2] from: (1) A
country that has been designated by the President as a "beneficiary
sub-Saharan African country;" and (2) That has satisfied the U.S. Trade
Representative that it has met the requirements of 19 U.S.C. 3722 (a)
and (b), having adopted protections against transshipment. The Republic
of South Africa is a designated "beneficiary sub-Saharan African
country" and has been declared by the U.S. Trade Representative to have
satisfied the requirements of the Act protecting against transshipment.
*See* Presidential Proclamation 7350, 65 Fed. Reg. 59321 (2000); 66 Fed.
Reg. 14425 (2001).

Section 3721 (b) of Title 19 provides, in part, that preferential
treatment shall apply only to the following textile and apparel
products:

> \* \* \* \* \* \* \* \* \*

(3) APPAREL ARTICLES FROM REGIONAL FABRIC OR YARNS.-Apparel articles
    wholly assembled in one or more beneficiary sub-Saharan African
    countries from fabric wholly formed in one or more beneficiary
    sub-Saharan African countries from yarns originating either in the
    United States or one or more beneficiary sub-Saharan African
    countries (including fabrics not formed from yarns, if such fabrics
    are classified under heading 5602 or 5603 of the Harmonized Tariff
    Schedule of the United States and are wholly formed in one or more
    beneficiary sub-Saharan African countries), or from components
    knit-to-shape in one or more beneficiary sub-Saharan African
    countries from yarns originating either in the United States or one
    or more beneficiary sub-Saharan African countries, or apparel
    articles wholly formed on seamless knitting machines in a
    beneficiary sub-Saharan African country from yarns originating
    either in the United States or one or more beneficiary sub-Saharan
    African countries.[^3]

The Customs Service notes that Chapter 98, Subchapter XIX, U.S. Note 2,
HTSUSA, sets forth limitations on the preferential treatment available
under this provision of the AGOA.

The instant ruling requires Customs to determine whether the merchandise
in issue constitutes apparel articles wholly assembled in South Africa
from fabric that was wholly formed in South Africa from yarns that
originated in South Africa. Customs notes that although the fabric in
issue is knit, the manufacturing process described by Jambo Kids leads
Customs to the conclusion that the merchandise is not "knit-to-shape."
*See generally* 19 C.F.R. 10. 212 (defining "knit-to-shape").

The articles Jambo Kids intends to import, "sweatshirts," sweatpants and
"long sleeve T-shirts" for children three to six years of age, must
initially meet the definition of "apparel articles." "Apparel articles"
are defined by Customs Regulations as "goods classifiable in Chapters 61
and 62 and headings 6501, 6502, 6503 and 6504 and subheadings 6406.99
and 6505.90 of the HTSUS." 19 C.F.R. 10.212. The Customs Service will
rely on the General Rules of Interpretation, part of the Harmonized
Tariff Schedule of the United States, to classify the merchandise, in
order to determine whether Jambo Kid's merchandise meets the definition
of "apparel articles."

General Rule of Interpretation 1 provides, in part, that classification
decisions are to be "determined according to the terms of the headings
and any relative section or chapter notes." *General Rule of
Interpretation 1*. General Rule of Interpretation 1 further states that
merchandise which cannot be classified in accordance with the dictates
of GRI 1 should be classified pursuant to the other General Rules of
Interpretation, provided the HTSUSA chapter headings or notes do not
require otherwise. According to the Explanatory Notes (EN), the phrase
in GRI 1, "provided such headings or notes do not otherwise require," is
intended to "make it quite clear that the terms of the headings and any
relative Section or Chapter Notes are paramount." *General Rules for the
Interpretation of the Harmonized System, Rule 1, Explanatory Note (V)*.

The Explanatory Notes constitute the official interpretation of the
Harmonized System at the international level. *See* Joint Explanatory
Statement *supra* note 1, at 549. The Explanatory Notes, although
neither legally binding nor dispositive of classification issues, do
provide commentary on the scope of each heading of the HTSUS. The EN's
are generally indicative of the proper interpretation of the headings.
*See* T.D. 89-80, 54 Fed. Reg. 35127-28 (Aug. 23, 1989); *Lonza, Inc. v.
United States*, 46 F. 3^d^ 1098, 1109 (Fed. Cir. 1995).

Commencing classification of the "sweatshirts," sweatpants and "long
sleeve T-shirts" for children three to six years of age, in accordance
with the dictates of GRI 1, the Customs Service examined the headings
and the chapter notes of the HTSUSA. Customs initially notes Chapter 61,
Note 9. Note 9 provides:

> > Garments of this chapter designed for left over right closure at the
> > front shall be regarded as men's or boys' garments, and those
> > designed for right over left closure at the front as women's or
> > girls' garments. These provisions do not apply where the cut of the
> > garment clearly indicates that it is designed for one or the other
> > of the sexes.
>
> > Garments which cannot be identified as either men's or boys'
> > garments or as women's or girls' garments are to be classified in
> > the headings covering women's or girls' garments.

The sweatpants because they are described by Jambo Kids as "unisex"
suggests to Customs that there is nothing with regard to the cut or
design of the garment that identifies them as intended for one or the
other of the sexes. These garments, based on this assumption, are
classified as girls' garments in heading 6104, HTSUS. Heading 6104,
HTSUS, provides for "\[w\]omen's or girls' suits, ensembles, suit-type
jackets, blazers, trousers, bib and brace overalls, breeches and shorts
(other than swimwear), knitted or crocheted." Should an examination of
the actual garments reveal sweatpants properly classified as boys'
garments, they would be classified in heading 6103, HTSUS.

The "long sleeve T-shirts," at the heading level, are not classified
according to the gender of the wearer. They are, depending on the
features and manufacture of the garments, classified as either knitted
T-shirts or similar articles in heading 6109, HTSUS, or as knitted
pullovers or similar articles in heading 6110, HTSUS. The lack of a
sample and the brief description provided in the ruling request
precludes Customs from making a more precise determination.

The situation confronting Customs with regard to the "sweatshirts" with
a partial opening at the neck is similar to that involving the long
sleeve T-shirts. Customs does not have a sample and the description
offered by the importer is very brief. Customs, based on the information
provided, is able conclude that they may be classified at the heading
level as either boys' or girls' knitted shirts of headings 6105 or 6106,
HTSUS.[^4] The sweatshirts with round necks and hoods are classified in
heading 6110, HTSUS.

The Jambo Kids garments are all classifiable in Chapter 61 of the HTSUS.
Since they are classifiable in Chapter 61 of the HTSUS, they are
"apparel articles" for the purpose of the AGOA. 19 C.F.R. 10.212.

The apparel articles subject to this ruling letter are "wholly assembled
in" South Africa, from fabric "wholly formed" in South Africa, from yarn
that originated in South Africa. "Wholly assembled in," for the purpose
of textile and apparel articles under the AGOA,

> means that all of the components of the textile or apparel articles
> (including thread, decorative embellishments, buttons, zippers, or
> similar components) were joined together in one or more beneficiary
> countries or one or more lesser developed beneficiary countries. 19
> C.F.R. 10.212.

The fabric is considered as having been "wholly formed" in South Africa
because the phrase "wholly formed," when used with reference to fabric,

> means that all of the production processes, starting with polymers,
> fibers, filaments, textile strips, yarns, twine, cordage, rope, or
> strips of fabric and ending with a fabric by a weaving, knitting,
> needling, tufting, felting, entangling or other process, took place in
> a single country. 19 C.F.R. 10.212.

The yarn is considered as "originating" in South Africa when the country
of origin is determined to be South Africa through the application of 19
C.F.R. 102.21. *See* 19 C.F.R. 10.212. According to correspondence of
the yarn supplier attached to Jambo Kid's submission, "yarn utilized
for...the products are manufactured in South Africa." Customs
understands this statement to mean that the cotton fiber is spun into
yarn in South Africa. The yarn used in the production of the Jambo Kids
garments, therefore, originates in South Africa for Customs purposes,
because the cotton fiber spun into cotton yarn meets the tariff shift
requirement of 19 C.F.R. 102.21 (e)(1). *See* 19 C.F.R. 102.21 (c)(2).

The Jambo Kids articles meet the requirements of Customs AGOA
implementing regulations and are, therefore, eligible to receive the
preferential tariff and quota benefits provided in the African Growth
and Opportunity Act.

HOLDING

The sweatshirts, sweatpants and long sleeve T-shirts are eligible to
receive the preferential tariff and quota benefits of the African Growth
and Opportunity Act.

They are classified in subheading 9819.11.09, Harmonized Tariff Schedule
of the United States Annotated.

They should be entered under Preference Group D and Visa Group 4.

Statistical reporting of the merchandise should be in accordance with
Chapter 98, Subchapter XIX, U.S. Statistical Note 1.[^5]

The Column 1 Special Rate of Duty is FREE.

Sincerely,

Myles B. Harmon, Director

Commercial Rulings Division

[^1]: *See* 19 U.S.C. 1500 (West 1999) (providing that the Customs
    Service is responsible for fixing the final appraisement,
    classification and amount of duty to be paid); *See also* Joint
    Explanatory Statement of the Committee of Conference, H.R. Conf.
    Rep. No. 100-576, at 549 (1988) *reprinted in* 1988 U.S. Code Cong.
    and Adm. News 1547, 1582 \[hereinafter Joint Explanatory
    Statement\].

[^2]: 19 C.F.R. 10.213 (c)

[^3]: *See also* subheading 9819.11.09, HTSUSA.

[^4]: *See* Chapter 61, Note 4, HTSUS.

[^5]: Chapter 98, Subchapter XIX, U.S. Statistical Note 1 states: "For
    statistical reporting of merchandise under the subheadings of this
    chapter: (a) Report the 8-digit number (or 10-digit number, if any)
    found in this subchapter in addition to the 10-digit number
    appearing in chapters 1-97 which would be applicable but for the
    provisions of this subchapter; and (b) The quantities reported
    should be in the units provided in chapters 1-97."