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NY L80241




November 17, 2004

CLA-2-39:RR:NC:SP:221 L80241

CATEGORY: CLASSIFICATION

TARIFF NO.: 3921.90.4090; 5903.10.2500

Mr. Gern F. Scott
PBB Global Logistics, Inc.
670 Young Street
Tonawanda, NY 14150

RE: The tariff classification of vinyl coated fiberglass fabric and vinyl coated polyester fabric from Canada.

Dear Mr. Scott:

In your letter dated October 12, 2004, on behalf of Louver-Lite (Canada) Limited, you requested a tariff classification ruling.

Five sample swatches were submitted with your request. Sheerweave styles 1000, 2000, 2360 and 2390 are woven fabrics made from vinyl coated fiberglass yarn. The yarns in the fabrics are heat set in an oven. Styles 1000, 2360 and 2390 are 35 percent by weight fiberglass and 65 percent by weight vinyl. Style 2000 is 37 percent by weight fiberglass and 63 percent by weight vinyl. Style 3000 is made from a combination of both vinyl coated fiberglass yarns and vinyl coated polyester yarns. The fiberglass yarns consist of 35 percent by weight fiberglass and 65 percent by weight vinyl. The polyester yarns consist of 31 percent by weight polyester and 69 percent by weight vinyl. You state that the core determines the mesh strength and serves as a base for the vinyl to adhere to. The vinyl coating gives the product its flame classification, UV protection and color.

The fabrics are shipped to Louver-Lite in Canada in 30-yard length rolls and widths of 63", 84", 96" or 98". In Canada these fabrics are laid on a cutting table and cut to shorter lengths with a guillotine blade. No other alterations are made. The cut fabric is shipped back to the United States where it is cut again to both length and width to be made into finished window blinds.

The applicable subheading for Sheerweave styles 1000, 2000, 2360 and 2390 will be 3921.90.4090, Harmonized Tariff Schedule of the United States (HTS), which provides for other plates, sheets, film, foil and strip, of plastics: other: flexibleother. The general rate of duty will be 4.2 percent ad valorem.

The applicable subheading for Sheerweave style 3000 will be 5903.10.2500, HTS, which provides for textile fabrics impregnated, coated, covered or laminated, with plastics, with polyvinyl chloride, of man-made fibers, not over 70 percent by weight of rubber or plastics. The general rate of duty will be 7.5 percent ad valorem.

You request a ruling as to the country of origin of the fabric that is returned after having been cut to smaller lengths. Section 134.1(b), Customs Regulations (19 CFR 134.1(b)), defines "country of origin" as the country of manufacture, production, or growth of any article of foreign origin entering the United States. Further work or material added to an article in another country must effect a substantial transformation in order to render such other country the "country of origin" within the meaning of this part. However for a good of a NAFTA country, the NAFTA Marking Rules will determine the country of origin.

Section 134.1(j), Customs Regulations (19 CFR 134.1(j)), provides that the "NAFTA Marking Rules" are the rules promulgated for purposes of determining whether a good is a good of a NAFTA country. Section 134.1(g), Customs Regulations (19 CFR 134.1(g)), defines a "good of a NAFTA country" as an article for which the country of origin is Canada, Mexico or the United States as determined under the NAFTA Marking Rules, set forth at 19 CFR Part 102. Section 134.45(a)(2) of the Customs Regulations (19 CFR 134.45(a)(2)), provides that a "good of a NAFTA country" may be marked with the name of the country of origin in English, French or Spanish.

Section 102.11, Customs Regulations (19 CFR 102.11), sets forth the required hierarchy for determining whether a good, other than textile and apparel products covered by 102.21, is a good of a NAFTA country for marking purposes. This section states that the country of origin of a good is the country in which: (1) The good is wholly obtained or produced; (2) The good is produced exclusively from domestic materials; or (3) Each foreign material incorporated in that good undergoes an applicable change in tariff classification set out in section 102.20 and satisfies any other applicable requirements of that section, and all other applicable requirements of these rules are satisfied.

For styles 1000, 2000, 2360 and 2390, since the fabric is cut in Canada of U.S. material, the cut fabric is neither wholly obtained or produced, nor produced exclusively from domestic materials. Accordingly, neither 19 CFR 102.11(a)(1) or 102.11(a)(2) may be used to determine the origin of these products, and analysis must continue to 19 CFR 102.11(a)(3).

Pursuant to 19 CFR 102.11(a)(3), the country of origin of a good is the country in which each foreign material incorporated in that good undergoes an applicable change in tariff classification as set forth in 19 CFR 102.20, and satisfies any other applicable requirements of that section. There is no tariff shift in the case before us, because the cut fabric is classifiable in the same provision as the uncut fabric. Thus, there is no applicable change in tariff classification within the requirements of section 102.20, and the country of origin of the good may not be determined in accordance with this provision.

Because 19 CFR 102.11(a) (incorporating section 102.20), is not determinative of origin, the next step is section 102.11(b), Customs Regulations, which states, in part, that except for a good that is specifically described in the Harmonized Tariff Schedule as a set, or is classified as a set pursuant to General Rule of Interpretation 3, where the country of origin cannot be determined under paragraph (a), the country of origin of the good is the country or countries of origin of the single material that imparts the essential character of the good. The U.S. origin fabric is the single material that imparts the essential character to the finished good pursuant to section 102.18(b)(iii). Accordingly, for country of origin marking purposes, the country of origin of styles 1000, 2000, 2360 and 2390 is the U.S. Because the marking requirements of 19 U.S.C. 1304 are applicable only to articles of "foreign origin," these styles need not be marked upon entry into the U.S.

Style 3000 is considered to be a textile article and is subject to separate rules for determining the country of origin. Section 334 of the Uruguay Round Agreements Act (codified at 19 U.S.C. 3592), enacted on December 8, 1994, provided rules of origin for textiles and apparel entered, or withdrawn from warehouse for consumption, on and after July 1, 1996. Section 102.21, Customs Regulations (19 C.F.R. 102.21), published September 5, 1995, in the Federal Register, implements Section 334 (60 FR 46188). Section 334 of the URAA was amended by section 405 of the Trade and Development Act of 2000, enacted on May 18, 2000, and accordingly, section 102.21 was amended (68 Fed. Reg. 8711). Thus, the country of origin of a textile or apparel product shall be determined by the sequential application of the general rules set forth in paragraphs (c)(1) through (5) of Section 102.21.

Paragraph (c)(1) states that "The country of origin of a textile or apparel product is the single country, territory, or insular possession in which the good was wholly obtained or produced." As the subject merchandise is not wholly obtained or produced in a single country, territory or insular possession, paragraph (c)(1) of Section 102.21 is inapplicable.

Paragraph (c)(2) states that "Where the country of origin of a textile or apparel product cannot be determined under paragraph (c)(1) of this section, the country of origin of the good is the single country, territory, or insular possession in which each of the foreign materials incorporated in that good underwent an applicable change in tariff classification, and/or met any other requirement, specified for the good in paragraph (e) of this section:"

Paragraph (e) in pertinent part states that "The following rules shall apply for purposes of determining the country of origin of a textile or apparel product under paragraph (c)(2) of this section":

HTSUS Tariff shift and/or other requirements

5901-5903 a change to heading 5901 through 5903 from any other heading, including a heading within that group, except from heading 5007, 5111 through 5113, 5208 through 5212, 5309 through 5311, 5407 through 5408, 5512 through 5516, 5803, 5806, 5808 and 6002 through 6006, and provided that the change is the result of a fabric-making process.

Since any required changes took place in the United States, the country of origin for style 3000 as determined under Section 102.21c(2) is the United States. Since the origin for all five fabrics covered by this request has been determined to be the United States, the five fabrics are not required to be marked as foreign articles for purposes of 19 U.S.C. 1304.

Note that separate Federal Trade Commission marking requirements exist regarding country of origin, fiber content, and other information that must appear on many textile items. For more information on the applicability of the requirements under the Textile Fiber Products Identification Act (TFPIA), you should contact the Federal Trade Commission, Textile Program, Division of Enforcement, Bureau of Consumer Protection, 600 Pennsylvania Avenue, N.W., Washington, D.C., 20580.

Article 401 of the NAFTA is incorporated into General Note 12, HTSUS. By operation of General Note 12, the eligibility of a particular article for NAFTA duty preference is predicated, in part, upon an origin determination under the NAFTA Marking Rules of either Canada or Mexico. In the instant case, application of the NAFTA Marking Rules contained in 19 CFR 102.11 did not yield an origin determination of either Canada or Mexico, but the United States.

However, the NAFTA Preference Override set forth in 19 CFR 102.19 is applicable to the subject merchandise. Specifically, 19 CFR 102.19(b) states that if, under any provision of this part, the country of origin of a good which is originating is determined to be the United States and that good has been exported from, and returned to, the United States after having been advanced in value or improved in condition in another NAFTA country, the country of origin of such good for Customs duty purposes is the last NAFTA country in which that good was advanced in value or improved in condition. Because the articles were returned to the U.S. after having been advanced in value or improved in condition in Canada by virtue of cutting, the country of origin for Customs duty purposes is Canada.

You state in your letter that these five fabrics are manufactured by Phifer Wire Products, Tuscaloosa, Alabama but you do not specify the nature of the manufacturing processes performed at the Alabama plant. In addition, you do not indicate where the fibers, yarns, and resins used to make the fabrics are manufactured. Therefore, there is insufficient information to determine the NAFTA eligibility of the fabrics. Note that fabrics that are classifiable in subheading 3921.90.4090 are subject to a Regional Value Content (RVC) requirement of 60 percent under the Transaction Value Method or 50 percent under the Net Cost Method. If you desire a ruling regarding the eligibility of these goods for NAFTA preferential treatment, the information noted in Section 181.93(b) of the Customs Regulations (19 C.F.R. §181.93(b)) must be provided to Customs. Identify the country of origin of the resin and all other components used in the production of the fabric. If any of these components originate in a non-NAFTA country, then provide a cost for each component and identify the country of processing and cost for each of the manufacturing steps. As provided for in Section 181.94 of the Customs Regulations (19 C.F.R. §181.94), you may submit this additional information within 30 days of the date of this notice. Please address any supplemental letter to Director, Commercial Rulings Division, Headquarters, U.S. Customs Service, 1301 Constitution Ave. N.W., Washington D.C. 20229, and include a copy of this letter.

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 Joan Mazzola at 646-733-3023.

Sincerely,

Robert B. Swierupski
Director,

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