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NY N024366




April 4, 2008

CLA-2-68:OT:RR:NC:SP:237

CATEGORY: CLASSIFICATION

TARIFF NO.: 6815.10.0000

Mr. Jorge Cigarroa
Cigarroa Dispatch Company
P.O. Box 642
Laredo, Texas 78042

RE: The tariff classification and country of origin for a carbon fiber based fire retardant rib knit pullover top and pants from Mexico.

Dear Mr. Cigarroa:

In your letter received on March 6, 2008, on behalf of the Expotel SA de CV of Colonia Centro, Mexico, you requested a binding tariff classification and country of origin ruling. You provided pictures of two garments and a sample piece of the fabric that will be used to manufacture the garments.

The men’s pullover garment shirt top, with crew neckline, long sleeves, self-fabric wrist cuffs, and a hemmed bottom, is constructed from a fire retardant synthetic rib knit fabric containing 55% carbon fibers, 20% synthetic rayon/viscose fibers, 15% synthetic polyvinyl chloride fibers, and 10% synthetic nylon fibers. The pullover top is designed for use by firefighters for thermal insulation and also as a fire retardant garment for protection from fire.

The men’s pull-on pants, with spandex waist band, open fly front panel, and self-fabric ankle cuffs, are constructed from a fire retardant synthetic rib knit fabric containing 55% carbon fibers, 20% synthetic rayon/viscose fibers, 15% synthetic polyvinyl chloride fibers, and 10% synthetic nylon fibers. The pants are designed for use by firefighters for thermal insulation and also as a fire retardant garment for protection from fire.

The applicable subheading for the carbon fiber based fire retardant rib knit pullover top and pants will be 6815.10.0000, Harmonized Tariff Schedule of the United States (HTSUS), which provides for: Articles of stone or of other mineral substances (including carbon fibers, articles of carbon fibers and articles of peat), not elsewhere specified or included: non-electrical articles of graphite or other carbon. The rate of duty will be free.

Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on World Wide Web at http://www.usitc.gov/tata/hts/.

Pursuant to General Note 12, HTSUS, for an article to be eligible for NAFTA preference, two criteria must be satisfied. Firstly, the article in question must be "originating" under the terms of that General Note 12(b), HTSUS, and secondly, the article must qualify to be marked as a good of a NAFTA country under the NAFTA Marking Rules contained in Part 102 of the CBP Regulations.

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; or

(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 non-originating 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.

Based on the information provided, carbon fibers originating in the United States and synthetic fibers originating in England are imported into Mexico. The fibers are spun and threads are formed. The threads are manufactured into a rib knit fabric. The fabric is used to construct the pullover top and pants. The fabric consists of the following fibers:

Carbon Fibers 55% Country of origin: U.S. (6815.10, HTSUS) Rayon/Viscose 20% Country of origin: England (5570.00, HTSUS) Polyvinyl Chloride 15% Country of origin: England (5506.90, HTSUS) Nylon Fibers 10% Country of origin: England (5506.10, HTSUS)

In order to qualify for NAFTA preferential treatment, the product must meet the requirements of HTSUS General Note 12(b)(ii)(A) which requires that each of the non-originating materials used in the production of such goods undergoes a change in tariff classification described in subdivisions (t) of this note.

The graphite fibers from the U.S. are considered goods originating in the territory of a NAFTA party. Therefore, we must determine if the synthetic fibers from England qualify as originating under NAFTA.

General Note 12(t), Chapter 68, Note 8 sets forth the rule of origin for goods classified under heading 6815, as follows:

(A) A change to headings 6814 through 6815 from any other chapter.

The English fibers of headings 5505 and 5570 are transformed into an article of carbon fibers of heading 6815 and undergo a change in tariff classification. They will meet the requirement of GN 12(t), Chapter 68, Note 8. The carbon fiber based fire retardant rib knit pullover top and pants will qualify as originating.

Part 102 of the Customs Regulations (19 CFR 102), sets forth the NAFTA Marking Rules for purposes of determining whether a good is a good of a NAFTA country for marking purposes. Section 102.11 sets forth a hierarchy for determining the country of origin of imported goods.

Section 102.11(a) of this section states that the country of origin of a good is the country in which:

(1) The good is wholly obtained or produced; The good is produced exclusively from domestic materials; or 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.

A "foreign material" is defined in section 102.1(e), Customs Regulations (19 CFR 102.1(e)), as "a material whose country of origin as determined under these rules is not the same country as the country in which the good is produced."

Based on the information provided, the fibers from the United States and England are neither "wholly obtained or produced," nor "produced exclusively from domestic materials (i.e. Mexican materials)." Therefore, for purposes of determining the origin of the imported good, section 102.11(a)(3) is the applicable rule that next must be applied. Under this rule, 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 set out in section 102.20.

Section 102.20(i) requires: "A change to heading 6815.10 through 6815.99 from any other heading, including another heading within that group."

The English fibers of headings 5505 and 5570 are transformed into an article of carbon fibers of heading 6815 and undergo a change in tariff classification. However, the carbon fibers of U.S. origin (6815.10) do not undergo a change in tariff classification. The requirements of HTSUS Section 102.11(a) are not met.

Section 102.11(b) of this section states: Except for a good that is specifically described in the Harmonized System as a set, or is classified as a set pursuant to General Rule of Interpretation (GRI) 3, where the country of origin cannot be determined under paragraph (a) of this section:

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, or

If the material that imparts the essential character of the good is fungible, has been commingled, and direct physical identification of the origin of the commingled material is not practical, the country or countries of origin may be determined on the basis of an inventory management method provided under the appendix to part 181 of the Customs Regulations.

Based on the information provided, the components are equally essential and no single material component imparts the essential character of the good. The requirements of HTSUS Section 102.11(b) are not met.

Where the country of origin of a good cannot be determined under Sec. 102.11(a) or (b) or Sec. 102.21, the country of origin of the good shall be determined in accordance with Section 102.19. (Note: Sec. 102.21 provides for textile and apparel products classifiable in chapters 50 through 63, however Sec. XI Legal Note 1(q) specifically excludes carbon fibers or articles of carbon fibers of heading 6815). Section 102.19, the NAFTA preference override, provides:

(a) Except in the case of goods covered by paragraph (b) of this section, if a good which is originating within the meaning of Sec. 181.1(q) of this chapter is not determined under Sec. 102.11(a) or (b) or Sec. 102.21 to be a good of a single NAFTA country, the country of origin of such good is the last NAFTA country in which that good underwent production other than minor processing, provided that a Certificate of Origin (see Sec. 181.11 of this chapter) has been completed and signed for the good.

Based on the information provided, the goods described above qualify under the NAFTA Preference Override in Section 102.19(a). Therefore, the country of origin for Customs duty and marking purposes will be Mexico, which is the last NAFTA country in which that good underwent production other than minor processing. The carbon fiber based fire retardant rib knit pullover top and pants should be marked “Made in Mexico.”

Your product may be subject to the laws and regulations of the Consumer Products Safety Act. Import compliance information may be obtained by contacting the U.S. Consumer Products Safety Commission (CPSC) at 4330 East West Highway, Bethesda, MD 20814, telephone (301) 504-7912, or email: sect15@cpsc.gov. 

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 Frank Cantone at 646-733-3038.

Sincerely,


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