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NY N017837




October 31, 2007

CLA-2-44:OT:RR:NC:2:230

CATEGORY: CLASSIFICATION

TARIFF NO.: 4411.94.00

Mr. Charles Newton
MSR Customs Corporation
Peace Bridge Plaza
P.O. Box 230
Buffalo, NY 14213-0230

RE: The country of origin and tariff classification and status under the North American Free Trade Agreement (NAFTA) of moss covered wood fiberboard basket liners from Canada; Article 509

Dear Mr. Newton:

In your letter dated September 21, 2007, on behalf of your client, Braun Nursery Ltd., you requested a ruling on the country of origin, tariff classification and status under the NAFTA of moss covered wood fiberboard basket liners from Canada.

The ruling was requested on a product referred to as the “Moss Mat Liner,” SKU # 7MOMAFLOO0012OO. A sample of the product was submitted for our review. The sample consists of a low density wood fiberboard matting covered on the surface with dried moss. It is a semi-circular flat mat, cut to shape and measuring approximately 26” x 14” x ½” thick. The mat is cut to form the liner for a wire plant basket.

The “Moss Mat Liner” is produced in Canada from wood fiberboard matting made in the United States and dried moss made in China. The fiberboard matting is composed of 100 percent wood fibers and is produced by using a hammer mill, a blender and a conveyor system. The fibers are dried and matted together and sent to Canada in rolls. The moss is made in China, imported into Canada, shredded, cleaned and applied to the surface of the wood fiberboard with glue. The moss covered fiberboard material is then cut to shape and size of the “Moss Mat Liner” in Canada.

Classification of goods in the Harmonized Tariff Schedule of the United States (HTSUS) is governed by the General Rules of Interpretation (GRI’s). GRI 1 provides that classification shall first be determined according to the terms of the headings and any relative section or chapter notes.

Chapter Note 4 of Chapter 44, HTSUS, states:

Products of heading 4410, 4411 or 4412 may be worked to form the shapes provided for in respect of the articles of heading 4409, curved, corrugated, perforated, cut or formed to shapes other than square or rectangular or submitted to any other operation provided it does not give them the character of articles of other headings.

Additional U.S. Note 1 (c) of Chapter 44, HTSUS, states:

The term “surface covered,” as applied to the articles of headings 4411 and 4412, means that one or more exterior surfaces of a product have been treated with creosote or other wood preservatives, or with fillers, sealers, waxes, oils, stains, varnishes, paints or enamels, or have been overlaid with paper, fabric, plastics, base metal, or other material.

The subject “Moss Mat Liner” consists of wood fiberboard cut to shape and surface covered with moss. Based on the above chapter notes, cutting to shape and surface covering are processes within the scope of heading 4411.

The applicable tariff provision for the “Moss Mat Liner,” SKU # 7MOMAFLOO0012OO, will be 4411.94.00, HTSUS, which provides for fiberboard of wood or other ligneous materials, whether or not bonded with resins or other organic substances; other (than medium density fiberboard); of a density not exceeding 0.5 g/cm³. The general rate of duty will be free.

The 10-digit statistical suffix is based on the actual density of the fiberboard. The actual density of the fiberboard, expressed in grams per cubic centimeter, should be provided at the time of entry to classify the subject product at the 10-digit level.

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/.

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, as follows:

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.

Based on the facts provided, the fiberboard matting material is made in the United States. The moss material is made in China, but undergoes a change in tariff classification when processed in Canada. Therefore, the subject “Moss Mat Liner” qualifies for NAFTA preferential treatment, because it will meet the requirements of HTSUS General Note 12(b)(ii)(A).

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 to 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.

Section 102.11, Customs Regulations, sets forth the required hierarchy for determining the country of origin of imported goods other than textile or apparel products. This section states, in pertinent part:

(a) The country of origin of a good is the country in which:

(1) The good is wholly obtained or produced;

(2) The good is produced exclusively from domestic materials; or

(3) Each foreign material incorporated in that good undergoes an applicable change in tariff classification set out in §102.20 and satisfies any other applicable requirements of that section . . .

Section 102.1 (e), Customs Regulations, defines “foreign material” 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.

In this case, the country of origin of the wood fiberboard material is the United States and the “Moss Mat Liner” is produced in Canada. The wood fiberboard material is considered to be a foreign material for purposes of these rules. The fiberboard material is classifiable in heading 4411, HTSUS, when imported into Canada. After processing in Canada it does not undergo the applicable change in tariff classification set out in §102.20. The cut-to-shape, surface covered fiberboard remains classified in heading 4411. Therefore, the country of origin cannot be determined by Section 102.11 (a), Customs Regulations.

The next section in the hierarchy, Section 102.11 (b), Customs Regulations, states:

(b) 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 3, where the country of origin cannot be determined under paragraph (a) of this section:

(1) The country of origin of the good is the country or countries of origin of the single material that imparts the essential character to the good.

The essential character of the “Moss Mat Liner” is imparted by the wood fiberboard. The country of origin of the material imparting the essential character of this good is the United States. Therefore, based on Section 102.11 (b) (1), Customs Regulations, the country of origin of the “Moss Mat Liner” is the United States.

Products of the United States are not subject to the marking requirements set forth in 19 U.S.C. 1304.

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 Paul Garretto at 646-733-3035.

Sincerely,

Robert B. Swierupski
Director,

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