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January 13, 1999

CLA-2-61:RR:NC:3:353 D84788

CATEGORY: CLASSIFICATION

TARIFF NO.: 6114.30.3060, 6114.30.3070

Mr. Richard A. Rocco
Livingston International Inc.
27215 Northline Road
Taylor, MI 48180

RE: Classification and country of origin determination for pressure garments; 19 CFR 102.21(c)(2); tariff shift. Status under the North American Free Trade Agreement (NAFTA); Article 509. Country of origin marking; Article 509.

Dear Mr. Rocco:

In your letter dated November 5, 1998, on behalf of D.R. Medical, you requested a tariff classification ruling and determination of country of origin, NAFTA eligibility, and acceptable country of origin marking.

FACTS:

The submitted samples are named style number VCGI-02,04 vest with sleeves and a VCC-105,205 panty girdle, above knee pressure garments made from knit 70% nylon/ 30% polyamide fabric. This office would describe style number VCGI-02,04 as a pressure upper body garment and style number VCC-105,205 as a pressure lower body garment. The items are custom-made according to a doctor’s prescription, or are ordered by a hospital or clinic. When they are made to fill a doctor’s prescription, they are specifically designed for a man or a woman; when the items are made to fill orders from a hospital or clinic, a unisex small, medium or large size is used. The items are designed to be worn underneath clothing and give support to muscles, comfort to the wearer and protection to the body.

The VCGI-02,04 pressure upper body garment consists of a two front and one back panel body with a full front zipper, and two panel long sleeves that are fully zippered. The garment has a 3/4 inch hem at all exposed areas.

The VCC-105,205 pressure lower body garment consists of two leg panels starting above the knee and extending to the waist with full front hook and eye fasteners and an open crotch. The top has a 3/4 inch hem.

The fabric is imported into Canada from Italy in 40 to 50 yard rolls. In Canada the fabric is cut to shape and assembled by sewing, Canadian origin zippers or American made hook and eye fasteners are added and the item is finished.

CLASSIFICATION:

The goods are not classifiable under Chapter 90, Harmonized Tariff Schedule of the United States (HTS). Chapter 90, Note 1 (b) states that the chapter does not cover “Supporting belts or other support articles of textile material, whose intended effect on the organ to be supported or held derives solely from their elasticity (for example, maternity belts, thoracic support bandages, abdominal support bandages, supports for joints or muscles) (section XI).” The goods are not considered similar to brassieres, girdles, corsets, braces, suspenders or garters under heading 6212. Unisex garments are classified per Chapter 61, Note 9 which states interalia “Garments which cannot be identified as either men's or boys' garments or as women's or girls' garments are to be classified in the headings covering women's or girls' garments.”

The applicable subheading for the style number VCGI-02,04 pressure upper body garment and VCC-105,205 pressure lower body garment, when specifically designed for a man will be 6114.30.3060, Harmonized Tariff Schedule of the United States (HTS), which provides for “Other garments, knitted or crocheted: Of man?made fibers: Other...Other: Men’s or boys’. The general rate of duty will be 15.5% ad valorem.

The applicable subheading for the style number VCGI-02,04 pressure upper body garment and VCC-105,205 pressure lower body garment, when specifically designed for a woman or when a unisex small, medium or large size will be 6114.30.3070, Harmonized Tariff Schedule of the United States (HTS), which provides for “Other garments, knitted or crocheted: Of man?made fibers: Other...Other: Women’s or girls’.” The general rate of duty will be 15.5% ad valorem.

COUNTRY OF ORIGIN:

On December 8, 1994, the President signed into law the Uruguay Round Agreements Act. Section 334 of that Act (codified at 19 U.S.C. 3592) provides new rules of origin for textiles and apparel entered, or withdrawn from warehouse, for consumption, on and after July 1, 1996. On September 5, 1995, Customs published Section 102.21, Customs Regulations, in the Federal Register, implementing Section 334 (60 FR 46188). Thus, effective July 1, 1996, the country of origin of a textile or apparel product shall be determined by sequential application of the general rules set forth in paragraphs (c)(1) through (5) of Section 102.21.

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, paragraph (c)(1) of Section 102.21 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 of the foreign materials 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:"

Paragraph (e) in pertinent part states that "The following rules shall apply for purposes of determining the country of origin of a textile or apparel product under paragraph (c)(2) of this section:"

HTSUS Tariff shift and/or other requirements

6101–6117 (1) If the good is not knit to shape and consists of two or more component parts, 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.

As the items are wholly assembled in a single country, that is, Canada, as per the terms of the tariff shift requirement, country of origin is conferred in Canada.

The country of origin of the style number VCGI-02,04 pressure upper body garment and VCC-105,205 pressure lower body garment is Canada. Based upon international textile trade agreements products of Canada are not subject to quota and the requirement of a visa.

NAFTA:

The style number VCGI-02,04 pressure upper body garment and VCC-105,205 pressure lower body garment do not qualify for preferential treatment under the NAFTA because one or more of the non-originating materials used in the production of the goods will not undergo the change in tariff classification required by General Note 12(t)/39, HTSUSA. The knit 70% nylon/ 30% polyamide fabric is classifiable in heading 6002 which is excepted. The general duty rate for the merchandise will apply.

MARKING:

You inquire about marking requirements and inquire if the proposed marking “Fabrique au Quebec”, printed on a sewn in label, is an acceptable country of origin marking for the imported style number VCGI-02,04 pressure upper body garment and VCC-105,205 pressure lower body garment. A marked sample was submitted with your letter for review.

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 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.

The country of origin marking requirements for a "good of a NAFTA country" are also determined in accordance with Annex 311 of the North American Free Trade Agreement ("NAFTA"), as implemented by section 207 of the North American Free Trade Agreement Implementation Act (Pub. L. 103-182, 107 Stat 2057) (December 8, 1993) and the appropriate Customs Regulations. The Marking Rules used for determining whether a good is a good of a NAFTA country are contained in Part 102, Customs Regulations. The marking requirements of these goods are set forth in Part 134, Customs Regulations.

Section 134.45(a)(2) of the regulations, provides that "a good of a NAFTA country may be marked with the name of the country of origin in English, French or Spanish. Section 134.1(g) of the regulations, defines a "good of a NAFTA country" as an article for which the country of origin is Canada, Mexico or the United States as determined under the NAFTA Marking Rules.

As provided in section 134.41(b), Customs Regulations (19 CFR 134.41(b)), the country of origin marking is considered conspicuous if the ultimate purchaser in the U.S. is able to find the marking easily and read it without strain.

With regard to the permanency of a marking, section 134.41(a), Customs Regulations (19 CFR 134.41(a)), provides that as a general rule marking requirements are best met by marking worked into the article at the time of manufacture. For example, it is suggested that the country of origin on metal articles be die sunk, molded in, or etched. However, section 134.44, Customs Regulations (19 CFR 134.44), generally provides that any marking that is sufficiently permanent so that it will remain on the article until it reaches the ultimate purchaser unless deliberately removed is acceptable.

The proposed marking of imported style number VCGI-02,04 pressure upper body garment and VCC-105,205 pressure lower body garment, as described above, does not satisfy the marking requirements of 19 U.S.C. 1304 and 19 CFR Part 134 and is not an acceptable country of origin marking. Although marking in English, French or Spanish is acceptable, Section 134.45(a)(2) of the regulations requires NAFTA marking with the name of the country, which is Canada.

This ruling is being issued under the provisions of Part 177 and 181 of the Customs Regulations (19 C.F.R. 177 and 181). Should it be subsequently determined that the information furnished is not complete and does not comply with 19 CFR 177.9(b)(1), the ruling will be subject to modification or revocation. In the event there is a change in the facts previously furnished, this may affect the determination of country of origin. Accordingly, if there is any change in the facts submitted to Customs, it is recommended that a new ruling request be submitted in accordance with 19 CFR 177.2.

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 Service, 1300 Pennsylvania Ave. N.W., Washington, D.C. 20229.

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 Kenneth Reidlinger at 212-466-5881.

Sincerely,

Robert B. Swierupski
Director,

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