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NY L84404





May 20, 2005

CLA-2-44:RR:NC:2:230 L84404

CATEGORY: CLASSIFICATION

TARIFF NO.: 4421.90.9740

Mr. Matthew Wilmore
Evenflo Logistics
Evenflo Company Inc.
707 Crossroads Court
Vandalia, OH 45377

RE: The tariff classification and status under the North American Free Trade Agreement (NAFTA), of wooden safety gates from Mexico; Article 509

Dear Mr. Wilmore:

In your letter dated April 26, 2005 you requested a ruling on the status of wooden safety gates from Mexico under the NAFTA.

The ruling was requested on five models of wooden safety gates: model numbers 160B, 1106C, 1196C, 1555C and 1556C. A sample of model number 1196C was submitted by you. Descriptive information regarding the other models was obtained from your website.

The sample (model 1196C) is identified as the “Wide Spaces Swing™ Gate.” It is a 30” tall wooden safety gate composed of three panels consisting of spaced wood bars in a wood frame. The gate is designed to operate by swinging open, after it is fully assembled and mounted in a doorway with the included hardware and mounting parts. Two of the panels slide together to adjust to the desired width, which can range from 42” to 60”.

Model 1106C is identified as the “Smart System Add-On Panel™.” It is a single 30” tall and 18” wide panel composed of wood bars in a wood frame. Attached to the frame are four plastic connecting fittings that allow the panel to be connected to another identical panel or to the model 1196C safety gate.

Model 160B is identified as the “Expansion Swing™ Gate.” It is a 32” tall gate composed of an expanding wooden lattice panel. It has a telescoping plastic rail on top. The classification of an identical safety gate (model #160) was considered in NY Ruling J89558 dated October 29, 2003.

Model 1555C and model 1556C are referred to as the “Home Décor Swing Gate.” Model 1555C and model 1556C are identical except for the finish. Model 1555C has a dark stained Harvest Oak finish and model 1556 has a Natural Oak finish. Both are 32” tall safety gates composed of spaced wooden spindles in wood frames. The gates adjust to fit openings 31” to 52” wide and are mounted in a doorway with hardware.

You submitted an illustrated description of the manufacturing process in Mexico. Wood boards of United States or Chinese origin are received in your Tijuana warehouse. In the condition as received in Mexico the boards are rectangular or square, cut to various sizes. Some of the boards are rounded or grooved along the edges. In the condition as imported into Mexico, the wood boards would be classifiable either as sawn wood in heading 4407, Harmonized Tariff Schedule (HTS) or as wood continuously shaped along the edges in heading 4409, HTS.

In Mexico, the wood boards are machined in various ways. All of the boards are either machined with holes for assembly and/or worked on one or both ends with different assembly joints referred to as chamfers, tenons or chucks. In addition, the wood parts (P/N 0520569AX) of models 1555C and 1556C, which are received as square cut-to-size boards, are shaped into spindles in Mexico. After milling, the parts are waxed and assembled together to make the safety gates.

The applicable tariff provision for the wooden safety gates, model numbers 160B, 1106C, 1196C, 1555C and 1556C, will be 4421.90.9740, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), which provides for other articles of wood, other. The general rate of duty will be 3.3 percent ad valorem.

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, as follows:

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; . . .

Based on the facts provided, the goods described above qualify for NAFTA preferential treatment, because they will meet the requirements of either HTSUSA General Note 12(b)(i), when all of the wood boards originate in the United States, or HTSUSA General Note 12(b)(ii)(A), when the wood boards originate in China but undergo a tariff shift after processing in Mexico. The goods will therefore be entitled to a free rate of duty under the NAFTA upon compliance with all applicable laws, regulations, and agreements.

The holding set forth above applies only to the specific factual situation and merchandise description as identified in the ruling request. This position is clearly set forth in 19 CFR 181.100(a)(2). This section states that a ruling letter is issued on the assumption that all of the information furnished in the ruling letter, either directly, by reference, or by implication, is accurate and complete in every material respect.

This ruling is being issued under the assumption that the subject goods, in their condition as imported into the United States, conform to the facts and the description as set forth both in the ruling request and in this ruling. In the event that the facts or merchandise are modified in any way, you should bring this to the attention of U.S. Customs and Border Protection (CBP) and you should resubmit for a new ruling in accordance with 19 CFR 181.93. You should also be aware that the material facts described in the foregoing ruling may be subject to periodic verification by the CBP.

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 Paul Garretto at 646-733-3035.

Sincerely,

Robert B. Swierupski
Director,

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