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NY L85608




June 21, 2005

CLA-2-61:RR:NC:TA:358 L85608

CATEGORY: CLASSIFICATION

TARIFF NO.: 6110.30.3050

Ms. Sherri Desjardins
UPS Supply Chain Solutions
P.O. Box 610328
Dallas, TX 75261

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

Dear Ms. Desjardins:

In your letter dated June 12, 2005, you requested a ruling on behalf of your client Oshkosh B’Gosh Inc., regarding the status of boy’s apparel from Mexico under the NAFTA.

The article, which has a sewn-in label at the nape of the neck marked Y2935 3T PROTO, is a boy’s knitted pullover. The garment consists of two fabric layers which will be permanently sewn together at the shoulders. The outer layer, which has sleeveless shirt styling, has narrow cotton rib fabric at the neck and armhole openings and a 100% polyester mesh body that is hemmed at the bottom. The inner layer, which has tee shirt styling, has narrow cotton rib fabric at the neck, hemmed sleeves, a hemmed bottom and a cotton jersey body. All cotton fabric is white and all polyester fabric is gray. You state that the item will be sized for boys 4-7.

Because the pullover consists of separate polyester and cotton fabrics it is deemed an article of mixed components. You indicated in your letter that you believe the essential character of the garment is imparted by the underlying cotton jersey fabric. While the polyester fabric mesh outer shell comprises over 60% of the visible surface area you suggest that because the cotton jersey fabric is over 50% of the garment weight the cotton fabric thus imparts the essential character. We disagree. While the weight of the jersey fabric exceeds the weight of the mesh fabric, the mesh fabric provides, except for the sleeve and trim areas, coverage for the entire garment front and back, as well as creating a relatively striking visual impact as compared to the mainly underlying jersey fabric. Based on GRI 3(b), the polyester mesh fabric imparts the essential characteristic to the pullover.

You state in your letter that the cotton jersey fabric and rib trim are NAFTA originating. You advise in telephone conversation that the polyester mesh fabric will be made in an Asian country and that the fabric will be cut to shape and sewn in Mexico.

The applicable tariff provision for the boy’s pullover will be 6110.30.3050, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), which provides for pullovers and similar garments, knitted or crocheted: of man-made fibers, other, men’s or boys’. The general rate of duty is 32% ad valorem.

Boy’s polyester knit pullovers fall within textile category designation 639. 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 scenario that applies to the garment in question is General Note 12(b)(ii), further discussed below:

As stated, the essential character of the article is the polyester mesh fabric which comprises the sleeveless outer layer of the garment. This material which originates from an Asian supplier (and is classifiable in heading 6006 HTS) will be sent to Mexico where it will be cut and sewn to form a garment that will be classified in HTS 6110.30.3050. Subheading (t) of General Note 12 for chapter 61 states that in order to qualify for NAFTA there must be “A change to headings 6109 through 6111 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 pullover does not qualify for preferential treatment under the NAFTA because the conditions of the note are not met.

In determining the country of origin for the finished articles 19 CFR 102.21(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 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.” Accordingly, the country of origin of the pullover is Mexico.

As the country of origin of the garment is Mexico, it 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 Bruce Kirschner at 646-733-3048.

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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