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HQ 967168




September 1, 2004

CLA-2 RR:CR:TE 967168 TMF

CATEGORY: CLASSIFICATION

TARIFF NO.: 6109.10.0037

Suzanne Ellers
Manufacturing Coordinator
Coloplast Corporation
1955 West Oak Circle
Marietta, Georgia 30062-2249

RE: Post Mastectomy Camisole; Caribbean Basin Trade Partnership Act

Dear Ms. Ellers:

This is in response to your letter of April 22, 2004 from your company, Coloplast Corporation, in which you requested a binding ruling on the eligibility of a post-mastectomy camisole under the Caribbean Basin Trade Partnership Act (hereinafter referred to as “CBTPA”). Your request along with a sample was sent to our office for our reply.

FACTS:

The submitted advertisement describes the subject merchandise as an Amoena® Post-Surgery Camisole, identified as product code 2105, which features a soft cotton Lycra blend fabric, light breast support and a stretch neck opening for easy “step-in” entry. The advertisement also states that the garment has smooth side seams that minimize irritation on sensitive skin and contains two detachable pouches for drainage management and a newly shaped fiberfill leisure form for complete fit and function. The submitted sample is representative of the proposed garment.

You state that the garment’s principal use is for holding external post-surgery breast prosthesis until the patient has healed from surgery and may be fitted with a silicone breast prosthetic and mastectomy brassiere. In your submission, you indicate
that the camisole is made exclusive of findings and trimmings composed of 88 percent cotton and 12 percent Lycra knit fabric. The garment has a rounded capped neckline, inch and half-wide capped shoulder straps, and flatlock stitching at the bottom. A 3.5 centimeter wide hook and loop fabric strip is sewn horizontally across the middle front of the garment on the inside. It serves to allow the attachment of the pouches that have partially elasticized openings and hook and loop tabs.

You indicate that the fabric is formed in the United States of yarns 100 percent formed in the United States and that the sewing thread is 100 percent U.S. sewing thread, which is dyed and finished in Costa Rica. You also provided an affidavit of origin from the supplier of the fabric as well. The 5/8 inches foldover neckline and underarm elastic capping is made in Canada. You refer to the capping as “neckline trim elastic”, which you state does not exceed 25 percent of the cost of the components of the assembled article, and provide a value statement of the article that shows the percentage of Canadian trim. You also indicate that the garment is cut and assembled in Costa Rica.

ISSUE:

Whether the Amoena® Post-Surgery Camisole, identified as product code 2105, is eligible for benefits under the Caribbean Basin Trade Preference Act (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 state that the subject garment will be cut and assembled in Costa Rica. Costa Rica is designated as a CBTPA beneficiary country (see Presidential Proclamation 7351, dated October 2, 2000, 65 Fed. Reg. 59329) and has satisfied the second criterion (see 65 Fed. Reg. 60236, dated October 10, 2000.)

You requested a determination as to classification of the instant camisole and whether it is eligible for CBTPA preference under subheading 9820.11.06, HTSUSA.

Classification of the Subject Camisole

The classification of the instant camisole, without consideration of whether the garment qualifies under CBTPA, is in subheading 6109.10.0037, HTSUSA, which provides for “T-shirts, singlets, tank tops and similar garments, knitted or crocheted: of cotton: women’s or girls’: underwear.”

CBTPA Preference

You state that the subject garment is eligible for CBTPA preference under subheading 9820.11.06, HTSUSA, which provides, in pertinent part, for:

Apparel articles sewn or otherwise assembled in one or more such countries with thread formed in the United States from fabrics wholly formed in the United States and cut in one or more such countries from yarns wholly formed in the United States, or from components knit-to-shape in the United States from yarns wholly formed in the United States, or bothunder the terms of U.S. note 2(a) to this subchapter.

The issue in the instant case is whether the 5/8 inches foldover neckline and underarm elasticized fabric capping, which originates from Canada, is considered to be a “finding” or “trimming” that would not preclude the garment from CBTPA eligibility.

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. Note 3, Subchapter XIX, Chapter 98, provides, in relevant part, that:      

(b) For purposes of subdivision (a)(i) above, findings or trimmings eligible under such subdivision include sewing thread, hooks and eyes, snaps, buttons, "bow buds", decorative lace trim, elastic strips, zippers (including zipper tapes) and labels and other similar products. Elastic strips are considered findings or trimmings only if they are each less than 2.54 cm in width and used in the production of brassieres.

In the instant case, the capping is not an “elastic strip” as provided in Note 3(b), supra, as the instant garment is not a brassiere but a camisole. For more discussion the Committee for the Implementation of Textile Agreements’ limitation of elastic strip, please see HQ 561868, dated July 10, 2001, which held foreign-origin rubber tape measuring less than ½ inches in width and imported into the Mexico for use in the assembly of finished garments (not including brassieres), was a "finding" under subheading 9802.00.90, HTSUS.

Thus, if an article is a “finding” or “trimming”, and provided its value does not exceed 25 percent of the cost of the components of the garments that utilize the finding or trimming, then its country of manufacture will be immaterial.

The elasticized capping does not serve as a finding because it finishes the edges by covering the underlying neckline and underarm raw edge fabric. It is analogous to the blue and white Oxford fabric used in the twill belted capri pants in Headquarters Ruling Letter (HQ) 562349, dated September 12, 2003. In HQ 562349, the Oxford fabric was used to finish the pants at the top of the waistband and to cover the holes that would be created to hold the belt, and CBP determined that the Oxford fabric was not a “finding” for the purposes of receiving AGOA preference because its primary purpose was structural. We find this rationale to apply in the instant case as the subject elasticized fabric capping functions like the oxford fabric of HQ 562349, since it “adds a minimal stylistic element” by covering the raw edges. For example, it does not function like the rubber tape of HQ 966239, dated May 16, 2003, which was used in the leg and/or arm openings of garments to provide a secure fitting and/or for reinforcement. See HQ 559552, dated February 14, 1996, in which CBP held that reinforcing tape "which...add[ed] 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."; see also HQ 966317, dated June 9, 2003, in which CBP determined that rubber tape used in three garments was a finding for purposes of the CBTPA. However, the instant elasticized fabric capping does not have a similar function.

Accordingly, it is our opinion that the foreign origin elasticized fabric capping that is used in the subject camisole is not a "finding" or “trimming” for purposes of the CBTPA, but a foreign-origin fabric which precludes the garment from receiving CBTPA benefits.

HOLDING:

The foreign-origin elasticized fabric capping used in the neckline and armholes of the post-mastectomy camisole, identified as the Amoena® Post-Surgery Camisole, product code 2105, is not considered to be a “finding” or “trimming” for the purposes of the CBTPA. The use of this foreign origin capping would render the garment ineligible for preferential treatment under the CBTPA.

The subject camisole is classified in subheading 6109.10.0037, HTSUSA, which provides for 6109.10.0037, HTSUSA, which provides for “T-shirts, singlets, tank tops and similar garments, knitted or crocheted: of cotton: women’s or girls’: underwear.” The column one duty rate is 16.5 percent ad valorem.

The designated textile and apparel category may be subdivided into parts. If so, the visa and quota requirements applicable to the subject merchandise may be affected. Since part categories are the result of international bilateral agreements which are subject to frequent renegotiations and changes, to obtain the most current information available, we suggest your client check, close to the time of shipment, the Textile Status Report for Absolute Quotas, previously available on the Customs Electronic Bulletin Board (CEBB), which is now available on the CBP website at www.cbp.gov.

Due to the changeable nature of the statistical annotation (the ninth and tenth digits of the classification) and the restraint (quota/visa) categories, your client should contact the local CPB office prior to importation of this merchandise to determine the current status of any import restraints or requirements.

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

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