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NY N016344




September 6, 2007

CLA-2-63:RR:NC:N3:351

CATEGORY: CLASSIFICATION

TARIFF NO.: 6307.90.9889

Karl F. Krueger
DHL Global Forwarding
2660 20th St.
Port Huron, MI 48060

RE: The tariff classification and status under the North American Free Trade Agreement (NAFTA), of the Aquamat, Aquatray, and Aquapan from Canada; Article 509

Dear Mr. Krueger:

In your letter dated May 25, 2007, and received in our office on Aug. 28, 2007, you requested a ruling on behalf of your client, Soleno Textiles, of Laval, Quebec, on the status of the Aquamat, Aquatray, and Aquapan, imported from Canada under the NAFTA. The merchandise is identical to that ruled upon in New York Ruling L83461, issued on April 26, 2005, except that the origin of one component has changed. No samples were sent with the current ruling request, but the items were described in L83461 as follows:

Each of the three products is constructed essentially the same except for size, and are for the same purpose. They are designed for the irrigation of plants in a greenhouse or nursery. They consist of three or four layers. The top layer is a perforated polypropylene sheet. It is designed to be water permeable. The second layer is a polyester non-woven fabric that is designed to be water permeable but also to minimize evaporation. The third layer is a polyester needle-punched felt designed to absorb and hold water. The second and third layers are laminated together. The bottom layer of the Aquamat is a waterproof polyethylene sheet.

The Aquamat comes in 100-foot rolls of various widths and features “drip tapes” (water supply hoses) built in every two feet. The Aquatray and Aquapan lack these features because they are designed to be fitted into trays or pans for use on waterproof tables in greenhouses with overhead watering systems. These products are cut to length. The Aquatray you sent us is approximately 14” square; the Aquapan sample is 9” x 24”. They are finished on all four sides by heat-sealing the edges.

Tin ruling L83461, the Aquamat, Aquatray, and Aquapan were classified in subheading 6307.90.9889, Harmonized Tariff Schedule of the United States (HTSUS), which provides for other made up textile articles, other. The general rate of duty is 7% ad valorem.

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/.

In the original request, you stated that all of the components originate in North America except the second layer, the polyester non-woven, which was from Korea or Indonesia. It was imported into Canada where it was laminated to the polyester needle-punched felt. You now state that all of the materials used are of Canadian origin except for the nylon layer in the Aquatray, which is from Indonesia. All other materials, you state, are originating.

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

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 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 Aquatray contains a non-originating component, the nylon fabric from Indonesia. Thus, we must address whether the product qualifies for NAFTA eligibility under General Note 12(b)(ii). To qualify under this provision, the non-originating material, the nylon fabric, must undergo the requisite change in tariff classification required in General Note 12(t)/63. We refer to that tariff shift rule which states, at (4):

A change to headings 6304 through 6310 from any other chapter, except from headings 5106 through 5113, 5204 through 5212, 5307 through 5308 or 5310 through 5311, chapters 54 through 55 [emphasis added], or headings 5801 through 5802 or 6001 through 6002, 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.

As the woven nylon fabric in the Aquatray is classifiable in either Chapter 54 or 55, HTSUS, this tariff shift is not satisfied and the Aquatray does not qualify for NAFTA preferential treatment.

Based on the facts provided, the Aquamat and Aquapan as described above qualify for NAFTA preferential treatment, because they will meet the requirements of HTSUS General Note 12(b). The goods will therefore be entitled to a free rate of duty under the NAFTA upon compliance with all applicable laws, regulations, and agreements.

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 Mitchel Bayer at 646-733-3102.

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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