The tariff classification and status under the North American Free Trade Agreement (NAFTA), of women’s garments from Mexico; General Note 12(b)(ii)(A); Article 509; TPL

N237427 February 1, 2013 CLA-2-61:OT:RR:NC:N3:361 CATEGORY: Classification TARIFF NO.: 6104.63.2006, 6104.53.2010 Ms. Rachael A. Slisz Patagonia Inc. 259 West Santa Clara Street Ventura, CA 93001 RE: The tariff classification and status under the North American Free Trade Agreement (NAFTA), of women’s garments from Mexico; General Note 12(b)(ii)(A); Article 509; TPL Dear Ms. Slisz: In your letter dated January 14, 2013, you requested a ruling on the status of women’s garments from Mexico under the NAFTA. The submitted sample, style 55775/”Women’s Pliant Fitted Crop Leggings”, is a pair of women’s legging style pants constructed of 84 percent nylon and 16 percent spandex knit fabric. The crop length pants feature a wide waistband with mesh overlay which is gathered; a mesh lined gusset panel; a triangular mesh overlay on the outer seam of both legs extending 11 eleven inches long starting at the leg bottom; a mesh key pocket on the inside of the waistband; and hemmed leg openings. The mesh is constructed of 91 percent nylon and 9 percent spandex knit fabric. The submitted sample, style 58625/”Women’s Pliant Side Hike Skirt”, is a woman’s yoga skirt with sewn in shorts. The skirt is constructed of 91 percent nylon and 9 percent spandex mesh knit fabric. The garment features a wide waistband with a mesh knit key pocket on the inside; gathering on one side seam with a tie draw cord; and a bottom finished with overlock stitching. The inner shorts feature a mesh lined gusset and hemmed leg openings. The shorts are obscured by the outer mesh fabric. The shorts are constructed of 84 percent nylon and 16 percent spandex knit fabric. The essential character of the garment is imparted by the knitted fabric of the outer skirt, Harmonized Tariff Schedule of the United States (HTSUS), General Rules of Interpretation (GRI) Rule 3 (b), noted. The submitted sample, style 56311/”Women’s Pliant Pants”, is a pair of women’s legging style pants constructed of 84 percent nylon and 16 percent spandex knit fabric. The crop length pants feature a 2 ½ inch wide waistband of which the lower half is composed of mesh fabric; a mesh lined gusset panel; a mesh key pocket on the inside of the waistband; and hemmed leg openings. The mesh is constructed of 91 percent nylon and 9 percent spandex knit fabric. Style 23780/”Women’s Outpacer Sport Top” is described as a woman’s top. It is described as having an internal shelf bra. Without a sample this office cannot classify the good nor determine NAFTA status. Section 177.7 of the Customs Regulations (19 C.F.R. §177.7) provides that rulings will not be issued in certain circumstances. Specifically, § 177.7(b) reads, in pertinent part:No ruling letter will be issued with respect to any issue which is pending before the United States Court of International Trade, the United States Court of Appeals for the Federal Circuit or any court of appeal therefrom.Beginning June, 2005, the issue of the classification of an upper body garment with a bra has been filed with the United States Court of International Trade by several different importers. Thus, the issuance of a classification ruling for style 23780 would be inconsistent with 19 C.F.R. §177.7(b) We are returning your three samples. The applicable subheading for styles 55775 and 56311 will be 6104.63.2006, Harmonized Tariff Schedule of the United States (HTSUS), which provides for Trousers…knitted or crocheted: Trousers: Of synthetic fibers: Other: Other: Women’s: Containing 5 percent or more by weight of elastomeric yarn or rubber thread. The duty rate will be 28.2% ad valorem. The applicable subheading for style 58625 will be 6104.53.2010, Harmonized Tariff Schedule of the United States (HTS), which provides for Women’s….skirts… knitted or crocheted: Of synthetic fibers. The duty rate will be 16% 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/. You have requested a determination under the NAFTA. The manufacturing operations are as follows: Style 55775 and 56311: Yarn made in Mexico Fabric for body of garment knitted in Mexico Mesh fabric made in Taiwan and cut and assembled in Mexico Garment manufactured (cut and assembled) in Mexico Style 58625: Mesh fabric for the skirt made in Taiwan and cut and assembled in Mexico Yarn for the shorts made in Mexico Fabric for the shorts knitted in Mexico Garment manufactured (cut and assembled) in Mexico Garments will be imported directly from Mexico into the United States. 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 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. Chapter 61, Chapter rule 2 states in pertinent part:For purposes of determining the origin of a good of this chapter, the rule applicable to that good shall only apply to the component that determines the tariff classification of the good, and such component must satisfy the tariff change requirements set out in the rule for that good. Based on the facts provided, Style 55775 and 56311 qualify for NAFTA preferential treatment because they meet the requirements of HTSUS General Note 12(b)(ii)(A). The merchandise will therefore be entitled to a free rate of duty under the NAFTA upon compliance with all applicable laws, regulations, and agreements. The component that determines the classification of the skirt is the mesh knit fabric which is classifiable in Chapter 60. Based on the facts provided, the skirt (style 58625) described above does not qualify for preferential treatment under the NAFTA because all of the above requirements are not met. However, the skirt 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(b), up to the annual quantities specified in subdivision (g)(i) of Additional U.S. Note 3. Upon completion of the required documentation and up to the specified annual quantities, the skirt may be eligible for the preferential rate of free. The special statistical reporting number 9999.00.60, HTS, is required with the above classification for the skirts imported from Mexico under the terms of Additional U.S. Note 3 to Section XI of the HTS. 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 classification, contact National Import Specialist Peggy Fitzgerald at 646-733-3052. If you have any questions regarding the eligibility for preferential treatment under NAFTA, contact National Import Specialist Rosemarie Hayward at 646-733-3064. . Sincerely, Thomas J. Russo Director National Commodity Specialist Division