CLA-2 RR:CTF:TCM 968229 BtB
Dennis J. Wakeman, Esq.
David Cohen, Esq.
Sandler, Travis & Rosenberg, P.A.
1300 Pennsylvania Avenue, NW
Washington, DC 20004-3002
Re: Country of origin determination of certain laminated fabrics under 19 U.S.C. §3592(b)(1)(C)
Dear Messrs. Wakeman and Cohen:
This is in reply to your letter dated May 15, 2006, to U.S. Customs and Border Protection (“CBP”), Office of Regulations and Rulings (“ORR”), on behalf of W.L. Gore & Associates, Inc. (“W.L. Gore”), submitted pursuant to 19 C.F.R. §177.2, requesting the country of origin of nine styles of certain laminated fabrics.
FACTS:
In your May 15, 2006 letter, you describe the certain laminated fabrics at issue and the production operations that they will undergo prior to their importation into the United States as follows:
The imported product will be a two-layer fabric laminate that consists of a face fabric with a membrane laminated to its back. The face fabric will be produced in Country A (Taiwan), the membrane is produced in Country B (United States, Germany or Japan) and the two are laminated in Country C (China). As the actual countries of production may change, we would like the ruling to also apply to the processes as described, regardless of the countries in which they are performed.
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The fabric, classified in 5903.90.2500, is a 2 layer fabric consisting of 100% polyester plain weave face fabric classified in 5407.52.2020 [footnote omitted]. Alternatively, a 100% nylon plain weave face fabric classified in 5407.42.0030 may also be used [footnote omitted]. Also on file in your New York office is a sample of the membrane, classified as 3921.19.0000 making up the second layer. The two layers (polyester or nylon face fabric and membrane) are laminated together to form the finished laminated fabric.
The production operations are as follows:
Country A (Taiwan)
100% Polyester Fabric/100% Nylon Fabric is woven
Country B (United States or Germany of [sic] Japan)
The GORE-TEX® membrane is produced
Country C (China)
The imported fabric is laminated with the GORE- TEX® membrane
The 10-digit numbers in the quotation above refer to subheadings (with statistical suffixes) in the Harmonized Tariff Schedule of the United States Annotated (“HTSUSA”). Subheading 5903.90.2500, HTSUSA, provides for: “Textile fabrics impregnated, coated, covered or laminated with plastics, other than those of heading 5902: Other: Of man-made fibers: Other: Other.” Subheading 5407.52.2020, HTSUSA, provides for: “Woven fabrics of synthetic filament yarn, including woven fabrics obtained from materials of heading 5404: Other woven fabrics, containing 85 percent or more by weight of textured polyester filaments: Dyed: Other, Weighing not more than 170 g/m2, Flat fabrics.” Subheading 3921.19.0000, HTSUSA, provides for: “Other plates, sheets, film, foil and strip, of plastics: Cellular: Of other plastics.” We emphasize that you provided the classifications of the components (fabrics and membrane) used to make the certain laminated fabric at issue. While these classifications have not been verified by this office, we proceed in this letter on the assumption that all of the information furnished in connection with your ruling request is accurate and complete in every material respect. See 19 C.F.R. §177.9(b).
You identified the style of fabric using a layer of 100% polyester plain weave face fabric as “Style SPL50VJ 2L.” You identified the remaining eight styles of fabric at issue, each using a 100% nylon plain weave face fabric, as Styles SPL70NY SL, SPL70HS 2L, SPL70FD 2L, FRP70CH 2L, FPL70MT 2L, FPL45BC 2L, FD070DL 2L, FD040IN 2L.”
ISSUE:
What is the county of origin of the certain laminated fabrics at issue?
LAW AND ANALYSIS:
The Uruguay Round Agreements Act (“URAA”), particularly Section 334, codified at 19 U.S.C. §3592, as amended by Section 405 of Title IV of the Trade and Development Act of 2000 (“TDA”), sets forth rules of origin for textile and apparel products. In pertinent part, 19 U.S.C. §3592 reads:
(b) Principles
In general
Except as otherwise provided for by statute, a textile or apparel product, for purposes of the customs laws and the administration of quantitative restrictions, originates in a country, territory, or insular possession, and is the growth, product, or manufacture of that country, territory, or insular possession, if—
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(C) the product is a fabric, including a fabric classified under chapter 59 of the HTS[USA], and the constituent fibers, filaments, or yarns are woven, knitted, needled, tufted, felted, entangled, or transformed by any other fabric-making process in that country, territory, or possession[.]
In this case, the face fabric of each style of laminated fabrics at issue is woven in Taiwan (Country A in the production scenario). While the fabric is laminated with the membrane in China (Country C in the production scenario), we do not regard this laminating as a “fabric-making process.” See generally, Headquarters Ruling Letter (“HQ”) 966062, dated March 11, 2003, and HQ 959437, dated February 19, 1997 (in both rulings, lamination was held not to be a fabric-making process). Accordingly, this lamination process does not impact the country of origin under 19 U.S.C. §3592(b)(1)(C). The country of origin remains Taiwan (Country A in the production scenario), the country in which the face fabric is woven.
Pursuant to legislative authority under the URAA and the TDA, CBP published Regulations implementing the origin principles set forth by Congress in those Acts. Section 102.21 of the CBP Regulations establishes, with specifically delineated exceptions, that "the provisions of this section shall control the determination of the country of origin of imported textile and apparel products for purposes of the Customs laws…." See 19 C.F.R. §102.21. Textile and apparel products that are encompassed within the scope of Section 102.21 are any goods classifiable in Chapters 50 through 63 of the HTSUSA, as well as goods classifiable under other specifically enunciated subheadings. See 19 C.F.R. §102.21(b)(5).
We recognize that if 19 C.F.R. §102.21, as it currently stands, is applied to the certain laminated fabrics at issue, their country of origin would not be Taiwan. Rather, if the general rules of the Regulation (19 C.F.R. §102.21(c)) are applied in sequential order, 19 C.F.R. §102.21(c)(3)(ii) would be applicable to the fabrics. This provision, in pertinent part, reads:
… if the good was not knit to shape and the good was wholly assembled in a single country, territory, or insular possession, the country of origin of the good is the country, territory, or insular possession in which the good was wholly assembled.
“Wholly assembled” is defined in 19 C.F.R. §102.21(b)(6):
The term “wholly assembled” when used with reference to a good means that all components, of which there be at least two, preexisted in essentially the same condition as found in the finished good and were combined to form the finished good in a single country, territory, or insular possession. Minor attachments and minor embellishments (for example, appliques, beads, spangles, embroidery, buttons) not appreciably affecting the identity of the good, and minor subassemblies (for example, collars, cuffs, plackets, pockets) will not affect the status of a good as “wholly assembled” in a single country, territory, or insular possession.
Under 19 C.F.R. §102.21(c), the certain laminated fabrics at issue would be held to be “wholly assembled” in China. The components (fabrics and membrane) preexist in essentially the same condition before and after the lamination process (although permanently joined) and are combined through heating to form the finished fabrics in a single country, China. We recognize the inconsistency between 19 U.S.C. §3592(b)(1)(C) and 19 C.F.R. §102.21(c) and intend to take necessary action to make the Regulation consistent with the statute in regard to laminated fabrics like those at issue.
HOLDING:
Under 19 U.S.C. §3592(b)(1)(C), the certain laminated fabrics at issue (identified as Styles SPL50VJ 2L, SPL70NY SL, SPL70HS 2L, SPL70FD 2L, FRP70CH 2L, FPL70MT 2L, FPL45BC 2L, FDO70DL 2L, FD040IN 2L) are products of Taiwan (Country A in the production scenario), the country in which the face fabric of each style fabric is woven.
This ruling is being issued under the provisions of Part 177 of the CBP Regulations (19 C.F.R. §177). Should it be subsequently determined that the information furnished is not complete and does not comply with 19 C.F.R. §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 CBP, it is recommended that a new ruling request be submitted in accordance with 19 C.F.R. §177.2.
Sincerely,
Gail A. Hamill, Chief
Tariff Classification and Marking Branch