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NY R02173




July 15, 2005

CLA-2-39:RR:NC:SP:221 R02173

CATEGORY: CLASSIFICATION

TARIFF NO.: 3926.40.0000

Mr. Kelly Veney
K.J. Veney International Pty, Ltd (T/As) KJV International 32 Ricketty Street
Mascot, NSW 2020
Sydney, Australia

RE: The tariff classification and status under the United States-Australia Free Trade Agreement (UAFTA), of polyurethane decorative rocks from Australia.

Dear Mr. Veney:

In your letter dated June 22, 2005, on behalf of Universal Rocks Pty Ltd., you requested a tariff classification ruling.

Photographs were provided with your letter. The rocks are made by spraying hot liquid polyurethane into molds to form shapes, such as artificial decorative ponds and waterfalls. The product is said to be “100 percent Australian manufactured.” From the information you have provided, it is not clear if the polyurethane liquid, or the pellets from which the liquid was derived, are of Australian origin. However, it is clear that even if the resin raw material is not of Australian origin that it has undergone a tariff change in the manufacture of the decorative rocks or ponds.

You suggest classification in subheading 3926.90, Harmonized Tariff Schedule of the United States (HTS), which provides for other articles of plastics, other. However, the rocks, which are decorative, are more specifically provided for in subheading 3926.40.0000.

The applicable tariff provision for the decorative rocks or ponds will be 3926.40.0000, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), which provides for other articles of plastics, statuettes and other ornamental articles. The general rate of duty will be 5.3 percent ad valorem.

General Note 28(b), HTSUS, sets forth the criteria for determining whether a good is originating under the UAFTA. General Note 28(b), HTSUS, (19 U.S.C. § 1202) states, in pertinent part, that

For the purposes of this note, subject to the provisions of subdivisions (c), (d), (m) and (n) thereof, a good imported into the customs territory of the United States is eligible for treatment as an originating good of a UAFTA country under the terms of this note only if –

(i) the good is a good wholly obtained or produced entirely in the territory of Australia or of the United States, or both;

(ii) the good was produced entirely in the territory of Australia or of the United States, or both, and—

(A) each of the nonoriginating materials used in the production of the good undergoes an applicable change in tariff classification specified in subdivision (n) of this note;

(B) the good otherwise satisfies any applicable regional value content requirement referred to in subdivision (n) of this note; or

(C) the good meets any other requirements specified in subdivision (n) of this note;
and such good satisfies all other applicable requirements of this note;

(iii) the good was produced entirely in the territory of Australia or of the United States, or both, exclusively from materials described in subdivision (b)(i) or (b)(ii) of this note; or

(iv) the good otherwise qualifies as an originating good under this note, and is imported directly into the customs territory of the United States from the territory of Australia.

It is not clear that all the materials used to make the decorative rocks are originating. However, we can look to General Note 28(n), which specifies required changes in classification. Based on the facts provided, the goods described above qualify for UAFTA preferential treatment, because they will meet the requirements of HTSUSA General Note 28(b)(ii)(A) and 28(n), Chapter 39, rule 5. The goods will therefore be entitled to a free rate of duty under the UAFTA upon compliance with all applicable laws, regulations, and agreements.

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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