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HQ 563270




August 5, 2005

CLA-2 RR:CR:SM 563270 KSG

CATEGORY: CLASSIFICATION

Tina Radburn
Queensland Government
Trade and Investment Office The Americas
350 S. Grand Avenue, Suite 2360
Los Angeles, California 90071

RE: Eligibility for UAFTA Preference of certain textile apparel articles; Country of Origin Marking

Dear Ms. Radburn:

This is in response to your letter dated April 25, 2005, requesting a binding ruling on behalf of Pranava, for the tariff classification of various textile articles sold as yoga wear, the country of origin marking requirements, and whether the yoga wear will qualify for preferential tariff treatment under the United States Australia Free Trade Agreement (“UAFTA”). The request covers approximately 20 garments. However, the requestor only submitted samples of two garments made out of Supplex. We have only been able to classify the two garments, for which the requested information and samples were provided. If you would like a classification for the garments that are made of the blend of cotton, polyester and lycra fabric, and the additional styles, please submit additional information and samples to the National Import Specialist Office in New York.

FACTS:

The first sample is a woman’s top known as style “Goddess Spliced Cami.” The second sample is a woman’s pants known as style “Goddess pants ¾.” The woman’s top has ¼ inch shoulder straps that cross in back, a U-shaped neckline in front, and a plain, hemmed bottom. The upper back extends across from side seam to side seam, exposing approximately the upper half of the wearer’s back. The garment also has a built-in bra type tubular lining with a one-inch elasticized bottom. The pants are women’s pull-on pants with a fold-over five-inch waistband and hemmed leg openings.

Both garments are made of Supplex which is 91% polyamide and 9% spandex. The yarns are made in Singapore. Customs and Border Protection (CBP) has determined that the spandex yarn is classified in subheading 5402.49.90, Harmonized Tariff Schedule of the United States (HTSUS), and the polyamide yarn is classified in subheading 5402.41.90, HTSUS. The fabric is knit, cut into components, and assembled into garments in Australia.

ISSUES:

What is the tariff classification for the garments described above?

Whether the textile articles described above are eligible for preferential tariff treatment under the U.S.- Australia FTA.

3. What is the proper country of origin marking of the garments described above?

LAW AND ANALYSIS:

Tariff Classification

Classification under the HTSUS is made in accordance with the General Rules of Interpretation (GRI). GRI provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative Section or Chapter Notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRI may then be applied. The Explanatory Notes (EN) to the Harmonized Commodity Description and Coding System, which represent the official interpretation of the tariff at the international level, facilitate classification under the HTSUS by offering guidance in understanding the scope of the headings and GRI.

CBP has determined that the women’s top is classified in subheading 6114.30.1020, HTSUS, which provides for: Other garments, knitted or crocheted: Of man-made fibers: Tops: Women’s or girls.

CBP has determined that the woman’s pants are classified in subheading 6104.63.2006, HTSUS, which provides for: Women’s or girls’ suits, ensembles, suit-type jackets, blazers, dresses, skirts, divided skirts, trousers, bib and brace overalls, breeches and shorts (other than swimwear), knitted or crocheted: Of synthetic fibers: Other: Trousers and breeches: Women’s: Containing 5 percent or more by weight of elastomeric yarn or rubber thread.

II. U.S.-Australia FTA eligibility

The U.S.-Australia Free Trade Agreement was signed on May 18, 2004, and entered into force on January 1, 2005, as approved and implemented by the UAFTA Implementation Act, Pub. L. 105-286, 118 Stat. 919 (August 3, 2004).

Section 203(b) of the United States-Australia Free Trade Agreement Implementation Act provides, in pertinent part:

For purposes of this Act and purposes of implementing the preferential treatment provided for under the Agreement, a good is an originating good if -
the good is a good wholly obtained or produced entirely in the territory of Australia, the United States, or both;
is produced entirely in the territory of Australia, the United States, or both, and –

(i) each of the nonoriginating materials used in the production of the good undergoes an applicable change in tariff classification specified in Annex 4-A or Annex 5-A of the Agreement.

The textile articles involved in this case are made from yarns that are not of U.S. or Australian origin. Therefore, the goods are not considered “wholly obtained or produced”. The yarn is manufactured in Singapore and therefore, would be considered a non-originating material for the purposes of this FTA. Since there is a non-originating material (the yarn), we look to Annex 4-A of the UAFTA to determine if the non-originating material satisfies the tariff shift rule specified in Annex 4-A.

As the top is classified in subheading 6114.30.1020, HTSUS, the Annex 4-A rule for 6113-6117 is applicable:

A change to headings 61.13 through 61.17 from any other chapter, except from headings 51.06 through 51.13, 52.04 through 52.12, 53.07 through 53.08 or 53.10 through 53.11, Chapter 54, or headings 55.08 through 55.16 or 60.01 through 60.06, provided that the good is both cut (or knit to shape) and sewn or otherwise assembled in the territory of one or both of the Parties.

Since the top classified in heading 6114 is made of two non-originating yarns that are classified in Chapter 54, the garment will not satisfy the tariff shift rule. Furthermore, none of the exceptions provided by the UAFTA apply.

The pants are classified in subheading 6104.63.2006, HTSUS. The Annex 4-A rule for 6104.61-6104.69 is applicable:

A change to subheadings 6104.61 through 6104.69 from any other chapter, except from headings 51.06 through 51.13, 52.04 through 52.12, 53.07 through 53.08 or 53.10 through 53.11, Chapter 54, or headings 55.08 through 55.16 or 60.01 through 60.06, provided that the good is both cut (or knit to shape) and sewn or otherwise assembled in the territory of one or both of the Parties.

Since the pants classified in subheading 6104.63 are made of two non-originating yarns that are classified in Chapter 54, the pants would not satisfy the tariff shift rule. Furthermore, none of the exceptions provided by the UAFTA apply.

III. Country of origin

The marking statute, section 304, Tariff Act of 1930, as amended (19 U.S.C. 1304), provides that, unless excepted, every article of foreign origin (or its container) imported into the U.S. shall be marked in a conspicuous place as legibly, indelibly and permanently as the nature of the article (or its container) will permit, in such a manner as to indicate to the ultimate purchaser in the U.S. the English name of the country of origin of the article. Part 134, Customs Regulations (19 CFR Part 134) implements the country of origin marking requirements and exceptions of 19 U.S.C. 1304.

Section 334 of the Uruguay Round Agreements Act (“Section 334") provides rules of origin for textiles and apparel entered, or withdrawn from warehouse, for consumption, after July 1, 1996. Section 102.21, Customs Regulations (19 CFR 102.21) implements section 334. Pursuant to 19 CFR 102.21, the country of origin of a textile or apparel product is determined by sequential application of the general rules set forth in paragraphs (c)(1) through (c)(5).

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, 19 CFR 102.21(c)(1) 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 foreign material 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.” The woman’s top is classified in heading 6114, HTSUS, and the women’s pants are classified in heading 6104. Section 102.21(e) states that for goods classified in headings 6101- 6117, HTSUS:

(1) If the good is not knit to shape, and consists of two or more component parts, except for goods of subheading 6117.10 provided for in paragraph (e)(2) of this section, a change to an assembled good of heading 6101 through 6117 from unassembled components, provided that the change is the result of the good being wholly assembled in a single country, territory, or insular possession.

Based on this rule, as the tops and pants are knit, cut into components and assembled in Australia, the articles will be considered a product of Australia for country of origin marking purposes.

HOLDING:

The item identified as “Goddess Spliced Cami” is classified in subheading 6114.30.1020, HTSUS, which provides for: Other garments, knitted or crocheted: Of man-made fibers: Tops: Women’s or girls. The item identified as “Goddess pants” is classified in subheading 6104.63.2006, HTSUS, which provides for: Women’s or girls’ suits, ensembles, suit-type jackets, blazers, dresses, skirts, divided skirts, trousers, bib and brace overalls, breeches and shorts (other than swimwear), knitted or crocheted: Of synthetic fibers: Other: Trousers and breeches: Women’s: Containing 5 percent or more by weight of elastomeric yarn or rubber thread. The general column one duty rate for both items is 28.2 percent ad valorem. Merchandise classified in subheading 6114.30.1020, HTSUS, falls within textile category 639, and merchandise classified in subheading 6104.63.2006, HTSUS, falls within textile category 648. Quota/visa requirements are no longer applicable for merchandise which is the product of World Trade Organization (WTO) member countries, which includes Australia.

The women’s top and pants are not considered originating goods under the United States-Australia Free Trade Agreement.

The women’s top and pants would be considered a product of Australia pursuant to 19 CFR 102.21 for the purposes of country of origin marking.

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 Customs officer handling the transaction.

Sincerely,

Monika R. Brenner, Chief
Valuation and Special Programs Branch

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