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NY L83475




April 11, 2005

CLA-2-61:RR:NC:TA:354 L83475

CATEGORY: CLASSIFICATION

TARIFF NO.: 6108.22.9020; 6114.30.1020

Ms. Jennifer A. Kupiec
Livingston International Trade Services, Inc. Gateway Executive Park
3556 Lakeshore Road, Suite 200
Buffalo, New York 14219

RE: The tariff classification and status under the North American Free Trade Agreement (NAFTA), of women’s apparel from Canada; Article 509.

Dear Ms. Kupiec:

In your letter dated March 18, 2005, you requested a ruling filed on behalf of MJM Novelty Sales Inc. on the status of women’s apparel from Canada under the NAFTA.

Style LVBL 523-4412 consists of a women’s matching top, a thong-styled bikini panty, and a hipster-styled bikini panty. The three garments are made of a 92% polyester 8% spandex knitted fabric with a heat-sealed printed image on the garment fronts. You have indicated that the three pieces will be sold together.

The top features a rounded front neckline and the upper edge of the back extends straight across from side seam to side seam. Capping at the top edges of the garment extends to form shoulder straps. The top has a hemmed bottom and a heat-sealed image at the center of the bust area. The two panel constructed hipster-styled bikini panty features capping at the waist, hemmed leg openings, a sewn-in crotch panel, and a heat-sealed image below the left side front waistband area. The thong-styled bikini panty features a front panel with a heat-sealed printed image, capping on the edges of the panty that extends to form the waistband, and a sewn-in crotch panel.

In your submission, you have stated that the country of origin for the 92% polyester 8% spandex knitted fabric (classifiable under 6004, HTS) is Taiwan and that the cutting and sewing will be done in Canada.

The applicable tariff provision for the Style LVBL 523-4412 Top will be 6114.30.1020, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), which provides for Other garments, knitted or crocheted: of man-made fibers: Tops: women’s. The general rate of duty will be 28.2% ad valorem.

The applicable tariff provision for the Style LVBL 523-4412 Hipster-styled bikini panty and Thong-styled bikini panty will be 6108.22.9020, HTS, which provides for Women’s or girls’ slips, petticoats, briefs, panties, nightdresses, pajamas, negligees, bathrobes, dressing gowns and similar articles, knitted or crocheted: Briefs and panties: of man-made fibers: Other . . . Women’s. The general rate of duty will be 15.6% ad valorem.

The top falls within textile category designation 639 and the bikini panties fall within textile category designation 652. Quota and visa status are the result of international agreements that are subject to frequent renegotiations and changes. To obtain the most current information as to whether quota and visa requirements apply to this merchandise, we suggest that you check, close to the time of shipment, the “Textile Status Report for Absolute Quotas” available at our web site at www.cbp.gov. In addition, you will find current information on textile import quotas, textile safeguard actions and related issues at the web site of the Office of Textiles and Apparel, at otexa.ita.doc.gov.

General Note 12(b), HTSUS, sets forth the criteria for determining whether a good is originating under the NAFTA. General Note 12(b), HTSUS, (19 U.S.C. § 1202) states, in pertinent part, that

For the purposes of this note, goods imported into the customs territory of the United States are eligible for the tariff treatment and quantitative limitations set forth in the tariff schedule as "goods originating in the territory of a NAFTA party" only if--

(i) they are goods wholly obtained or produced entirely in the territory of Canada, Mexico and/or the United States; or

(ii) they have been transformed in the territory of Canada, Mexico and/or the United States so that--

(A) except as provided in subdivision (f) of this note, each of the non-originating materials used in the production of such goods undergoes a change in tariff classification described in subdivisions (r), (s) and (t) of this note or the rules set forth therein, or

(B) the goods otherwise satisfy the applicable requirements of subdivisions (r), (s) and (t) where no change in tariff classification is required, and the goods satisfy all other requirements of this note;

(iii) they are goods produced entirely in the territory of Canada, Mexico and/or the United States exclusively from originating materials; or

(iv) they are produced entirely in the territory of Canada, Mexico and/or the United States but one or more of the nonoriginating materials falling under provisions for "parts" and used in the production of such goods does not undergo a change in tariff classification because--

(A) the goods were imported into the territory of Canada, Mexico and/or the United States in unassembled or disassembled form but were classified as assembled goods pursuant to general rule of interpretation 2(a), or

(B) the tariff headings for such goods provide for and specifically describe both the goods themselves and their parts and is not further divided into subheadings, or the subheadings for such goods provide for and specifically describe both the goods themselves and their parts,
provided that such goods do not fall under chapters 61 through 63, inclusive, of the tariff schedule, and provided further that the regional value content of such goods, determined in accordance with subdivision (c) of this note, is not less than 60 percent where the transaction value method is used, or is not less than 50 percent where the net cost method is used, and such goods satisfy all other applicable provisions of this note.

The only scenario that might apply to the garments in question is General Note 12(b)(ii), further discussed below:

For the Top, material from Taiwan classified in heading 6004 will be cut and sewn in Canada to form a top that will be classified in HTS 6114.30.1020. Subheading (t) of General Note 12 for chapter 61 states that in order to qualify for NAFTA there must be “A change to headings 6113 through 6117 from any other chapter, except from headings 5106 through 5113, 5204 through 5212, 5307 through 5308 or 5310 through 5311, chapter 54, or heading 5508 through 5516 or 6001 through 6006, provided that the good is both cut (or knit to shape) and sewn or otherwise assembled in the territory of one or more of the NAFTA parties.” In this regard, the top does not qualify for preferential treatment under the NAFTA because the conditions of this note are not met.

For the Hipster-styled bikini panty and the Thong-styled bikini panty, material from Taiwan classified in heading 6004 will be cut and sewn in Canada to form the panties that will be classified in HTS 6108.22.9020. Subheading (t) of General Note 12 for chapter 61 states that in order to qualify for NAFTA there must be “A change to subheadings 6108.22 through 6108.29 from any other chapter, except from headings 5106 through 5113, 5204 through 5212, 5307 through 5308 or 5310 through 5311, chapter 54, or headings 5508 through 5516 or 6001 through 6006, provided that the good is both cut (or knit to shape) and sewn or otherwise assembled in the territory of one or more of the NAFTA parties. In this regard, the panties do not qualify for preferential treatment under the NAFTA because the conditions of this note are not met.

In determining the country of origin for the finished articles, we used the rules of origin described in 19 CFR 102.21(c)(2), which 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.” Section 102.21(e) for headings 6101 – 6117 (1) states that “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.” In this regard, the country of origin of the Top, Hipster-styled bikini panty, and the Thong-styled bikini panty will be Canada.

As the country of origin of the garments is Canada, they may be subject to a reduced rate of duty based upon the Tariff Preference Levels (TPL) established in Section XI, Additional U.S. Note 3(a), up to the annual quantities specified in subdivision (f)(i) of Note 3. Upon completion of the required documentation and up to the specified annual quantities, the garments may be eligible for the preferential rate of Free.

This ruling is being issued under the provisions of Part 181 of the Customs Regulations (19 C.F.R. 181).

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 Deborah Marinucci at 646-733-3054.

Should you wish to request an administrative review of this ruling, submit a copy of this ruling and all relevant facts and arguments within 30 days of the date of this letter, to the Director, Commercial Rulings Division, Headquarters, U.S. Customs and Border Protection, 1300 Pennsylvania Ave. N.W., (Mint Annex), Washington, D.C. 20229.

Sincerely,

Robert B. Swierupski
Director,

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