• HQ W967834
• Jun 22, 2007

• Type : Classification; Marking • HTSUS : 6211.43.0091
•  Modifies:   F84383     Related:   F84383; 961447; 959545   

CLA-2 OT:RR:CTF:TCM W967834 ASM

Randy Rucker, Esq.
Gardner Carton & Douglas LLP
191 N. Wacker Drive, Suite 3700
Chicago, Illinois 60606-1698

RE: Request for reconsideration of NY F84383: Classification and Country of Origin Marking of textile Graduation Caps & Gowns; Modification of NY F84383

Dear Mr. Rucker:

This is in response to a request for reconsideration dated August 2, 2005, made on behalf of your client, Jostens, Inc. (hereinafter “Jostens”), of Customs and Border Protection (CBP) New York Ruling letter (NY) F84383, dated April 4, 2000, which classified a graduation cap and gown under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). A sample has been submitted to CBP for examination. In addition, we held a meeting with you and a representative of the Jostens’ company on September 12, 2006, to discuss the classification of the subject merchandise and have reviewed your supplemental submission dated September 22, 2006.

Pursuant to section 625(c)(1), Tariff Act of 1930 (19 U.S.C. 1625(c)(1)), as amended by Title VI, a notice was published in the May 9, 2007, Customs Bulletin, Volume 41, Number 20, proposing modification of NY F84383, only as it related to the erroneous finding that the goods could not be marked “Assembled in Mexico” and to revoke any treatment accorded to substantially identical transactions. One comment was received in response to the notice.

FACTS:

The article identified as the “One Way” BDG graduation cap and gown is composed of woven 100 percent textured polyester fabric. The article identified as the “One Way” Treasure graduation cap and gown is composed of woven 100 percent acetate taffeta fabric. The sample submitted to CBP is a child’s “kinder” size cap and gown made of 100 percent acetate fabric. At this time, Jostens contends that it will import the “One Way” caps and gowns, packaged together in sets of one cap and one gown each, from China. Hereinafter, both styles of graduation caps and gowns at issue in this ruling will be referred to as “One Way” Graduation Caps and Gowns.

The graduation caps feature a two fabric crown (skull cap) with fabric that matches the gown on the outside and a white lining fabric sewn to the inside of the cap. The skull cap has a cardboard insert at the top and has been securely glued to the inside fabric lining portion and adhered with glue to the fabric covered 9.5 inch square flat top (mortarboard). The mortarboard features a fabric-covered button and folded fabric pleats on the underside, at each corner, which gives the top of the mortarboard a smooth clean line at each corner. The skullcap portion of the cap has gathered elastic at the back, which has been encased in the folded fabric hem. The gather measures approximately 5 inches in length. This secures the cap to the wearer’s head. The skullcap has a folded hem with double overlock stitching at the edge.

The graduation gowns are intended to be full length, descending to the ankle, but the length will vary depending on the height of the wearer. The gowns feature a yolk panel that is lined with matching fabric to form the upper back, neckline, and front shoulder panels. The yolk is joined to a single gathered panel in the back, two separate pleated front panels, and long flowing sleeves that are gathered at each shoulder and descend to the wrist. The entire gown has fully turned and folded seams at the neckline, sleeves, and bottom edges. A color coordinated full front zippered closure has been designed to join the pleated front panels when closed. The pleats mask the seamed edges of the zipper tape with a crisp folded pleat on either side of the zipper. The gown has a v-neck shape at the neckline when the gown is fully closed. The interior seams of the gown have been securely finished with overlock stitching and the yolk has been secured with a second seam.

In NY F84383, dated April 4, 2000, CBP classified the “One Way” Graduation Caps in subheading 6505.90.8090, HTSUSA, which provides for “Hats and other headgear, knitted or crocheted, or made up from lace, felt or other textile fabric, in the piece (but not strips), whether or not lined or trimmed . . .: Other: Of man-made fibers: Other: Not in part of braid, Other: Other: Other”. The “One Way” Graduation Gowns were classified in subheading 6211.43.0091, HTSUSA, which provides for “Track suits, ski-suits and swimwear; other garments: Other garments, women’s or girls’: Of man-made fibers, Other.”  In your first submission, you note that your client, Jostens, believes that its “One Way” Graduation Caps and Gowns are properly classified under subheading 9505.90.6000, HTSUSA, as “Festive, carnival or other entertainment articles . . .: Other: Other.” Alternatively, Jostens suggests classification of these articles in subheading 6505.90.8090, HTSUSA, as “Hats and other headgear, knitted or crocheted, or made up from lace, felt or other textile fabric, in the piece (but not in strips), whether or not lined or trimmed; hair-nets of any material, whether or not lined or trimmed: Other: Of man-made fibers: Other: Not in part of braid: Other: Other: Other”.

ISSUE:

What is the proper classification for the merchandise? Whether the proposed country of origin marking “Assembled in Mexico” satisfied the requirements of 19 USC 1304.

LAW AND ANALYSIS:

Classification

Classification under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) is made in accordance with the General Rules of Interpretation (GRI). GRI 1 provides that the classification of goods shall be determined according to the terms of the headings of the tariff schedule and any relative Section or Chapter Notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRI may then be applied. The Harmonized Commodity Description and Coding System Explanatory Notes (“ENs”) constitute the official interpretation of the Harmonized System at the international level. While neither legally binding nor dispositive, the ENs provide a commentary on the scope of each heading of the HTSUSA and are generally indicative of the proper interpretation of these headings. See T.D. 89-80, 54 Fed. Reg. 35127, 35128 (August 23, 1989).

We begin by noting that the EN to 6211 provides in relevant part that the “Explanatory Note to heading 61.14 concerning other garments apply, mutatis mutandis, to the articles of [heading 62.11]”. The EN to 6114 specifically provides for the classification of knit graduation gowns, as follows:

This heading covers knitted or crocheted garments which are not included more specifically in the preceding headings of this Chapter.

The heading includes, inter alia:

* * *

(3) Professional or scholastic gowns and robes.

* * * In view of the foregoing, we can infer that well-made professional or scholastic gowns and robes, including academic gowns constructed of woven fabric, are classifiable in heading 6211, HTSUSA, because they are set forth as an exemplar of a type of “garment” classifiable in heading 6114, HTSUSA.

In your submission, you acknowledge that the “One Way” Graduation Caps and Gowns are academic costumes traditionally worn in conjunction with the celebration of a graduation ceremony. However, you further assert that these articles are named “One Way” because they are disposable and intended for one time use as distinguished from the Jostens “rental” gowns, which are of a more durable construction and designed for repeated use. Thus, you reason that the subject textile articles should be classified as festive articles in heading 9505, HTSUSA.

Heading 9505, HTSUSA, includes articles, which are "Festive, carnival, or other entertainment articles, including magic tricks and practical joke articles; parts and accessories thereof". Note 1(e), Chapter 95, HTSUSA, excludes articles of "fancy dress, of textiles, of chapter 61 or 62" from classification in Chapter 95. The ENs to 9505, state, among other things, that the heading covers: (A)     Festive, carnival or other entertainment articles, which in view of their intended use are generally made of non-durable material. They include: * * * (3)     Articles of fancy dress, e.g., masks, false ears and noses, wigs, false beards and moustaches (not being articles of postiche - heading 67.04), and paper hats. However, the heading excludes fancy dress of textile materials, of Chapter 61 or 62. [emphasis supplied]     * * *

In your first submission you begin by asserting that the case of Midwest of Cannon Falls, Inc. v. United States, 20 Ct. Int’l Trade 123 (1996), aff’d in part, rev’d in part, 122 F.3d 1423 (Fed. Cir. 1997), supports your position that the Jostens’ gowns are classifiable as festive articles under Chapter 95, HTSUSA. However, before we can reach a determination as to the festive nature of the subject merchandise, we must finally determine whether or not the gowns are articles of “fancy dress” that may be excluded from classification in Chapter 95, HTSUSA, pursuant to Note 1(e), Chapter 95, HTSUSA. Accordingly, we start by examining the case of Rubie’s Costume Company v. United States, 337 F.3d 1350 (Fed Cir. 2003), hereinafter Rubie’s. The Rubie’s case is directly on point in that it presented the question of whether CBP’s decision in HQ 961447, dated July 22, 1998, merited deference when CBP set forth specific characteristics which determined that textile costumes of a flimsy nature and construction, lacking in durability, and generally recognized as not being normal articles of apparel were classifiable as duty free “festive articles” under subheading 9505.90.6000, HTSUSA. In fact, the court found that HQ 961447 was entitled to deference and upheld the reasoning set forth in that ruling, which classified textile costumes of a flimsy nature and construction, lacking in durability, and generally recognized as not being normal articles of apparel, as “festive articles” in heading 9505, HTSUSA. Of particular relevance to the merchandise now in question is the fact that the court specifically noted that HQ 961447 had correctly compared functional and structural deficiencies of “festive article” costumes with the standard features found in “wearing apparel” in order to determine whether articles are properly classified in Chapter 95 or Chapters 61/62, HTSUSA.

The ruling that was upheld in the Rubie’s case, HQ 961447, affirmed CBP’s decision in HQ 959545, dated June 2, 1997, which responded to a domestic interested party petition filed pursuant to Section 516 of the Tariff Act of 1930, as amended (19 U.S.C. 1516) and Title 19 Code of Federal Regulations Section 175.1 (19 C.F.R. 175.1). In HQ 959545, CBP classified one textile costume, identified as the “Cute and Cuddly Clown” (No. 11594), as a normal article of wearing apparel classifiable in heading 6209, HTSUSA, because it was well-constructed and had a substantial amount of “finishing work”, i.e., sewing used to construct, tailor, or finish the article. The “Cute and Cuddly Clown” garment, which featured a durable neckline with two seams and no raw edges on the article, was classified in the provision for “Babies’ garments and clothing accessories . . . ” under subheading 6209.30.3040, HTSUSA. Similarly, the subject “One Way” Graduation Gowns have a substantial amount of finishing work with all interior seams having durable overlock stitching and a second reinforcing seam, a two-ply yolk finished with two seams, and turned hems on the neck, cuffs, and hem. These features make the gowns extremely durable. In addition, the gowns feature a zipper closure and styling features that include formed pleated front panels and a gathered back panel.

HQ 959545 also set forth the criteria used to determine the textile costumes that were classifiable as “festive articles” in subheading 9505.90.6090, HTSUSA, and held that the “Witch of the Webs” (No. 11062), “Abdul Sheik of Arabia (No. 15020), “Pirate Boy” (No. 12013), and “Witch (No. 11005), were considered flimsy, lacking in durability, and not normal articles of apparel, and were properly classified as “Festive, carnival or other entertainment articles . . .” in heading 9505, HTSUSA. These textile costumes shared the following characteristics: There were no significant styling features and each costume had raw edges on fabrics that could “run” or fray. Clearly the subject “One Way” Graduation Gowns are distinguishable from these articles in that there is careful styling and construction in the gown which is constructed with formed pleats on the front panels, interior seams with durable overlock stitching and a second reinforcing seam, gathers at the top of the sleeves/back panel, a two-ply yolk, zipper closure, and turned hems on all edges. The aforementioned features and numerous other characteristics used to distinguish between textile costumes classifiable as “Festive articles” of Chapter 95, HTSUSA, and “fancy dress” of Chapters 61 or 62, HTSUSA, have been set forth in great detail in the CBP Informed Compliance Publication, What Every Member of the Trade Community Should Know About: Textile Costumes under the HTSUS, August 2006 (“Textile Costumes under the HTSUS”). As noted in this publication, we generally consider four areas in making classification determinations for textile costumes, i.e., “Styling”, “Construction”, “Finishing Touches”, and “Embellishments”.

With regard to “Styling”, the examples provided in the Informed Compliance Publication note that a “well-made” article of Chapter 61 or 62, HTSUSA, would have two layers of fabric, pleats, and facing fabrics (two or more layers of fabric/linings). The subject gown has abundant “Styling” features with pleats on both front panels, gathers on the back panel/tops of sleeves, and a yolk that has been constructed with two layers of fabric. The Informed Compliance Publication also provides examples of well-made “Construction” elements, which include an assessment of the neckline and seams. Since the subject gown has a full lining on the yolk, this would be considered a well-made neckline. Furthermore, the over-lock stitching and double seams on the yolk are examples of a well-made garment. The publication notes that well-made “Finishing Touches” include zipper closures constructed with a fold of fabric that makes the zipper less visible on the exterior of the costume. The subject garment has a color coordinated full front zipper that has a fabric pleat on either side of the zipper tape making it less visible to the eye. Also representative of a well-made garment is a “turned” hem, i.e., the fabric edge is folded over and sewn to the inside of the garment. The subject garment has turned hems on every edge.

In your second submission dated September 22, 2006, you argue that the gowns do not have “well-made” hems and that the other “well-made” elements (zipper closure, pleats, double panel yolk) have not been incorporated for durability. You further assert that the gowns are “flimsy” overall. However, as set forth above, we have carefully assessed each of these features and found them to be “well-made” and the gowns to be durable overall. This determination has been made in accordance with the aforementioned Informed Compliance Publication. Furthermore, our assessment of each feature is consistent with the criteria used by CBP in determining what is meant by the terms “flimsy, non-durable” or “well-made” in order to classify textile costumes as festive articles in subheading 9505.90.6000, HTSUSA, or as “fancy dress” in Chapters 61 or 62, HTSUSA, and which has been set forth in the following rulings: HQ 957973, August 14, 1995; HQ 958049, August 21, 1995; HQ 958061, dated October 3, 1995; HQ 957948, May 7, 1996; HQ 957952, May 7, 1996; HQ 959545, June 2, 1997; HQ 959064, June 19, 1997; HQ 960805, August 22, 1997; HQ 960107, October 10, 1997; HQ 961447, July 22, 1998; HQ 962081, November 25, 1998; HQ 962184, November 25, 1998; and HQ 962441, March 26, 1999.

Although you assert that the court’s opinion in Rubie’s did not limit the holding to Halloween or party costumes, we note that the language of heading 9505, HTSUSA, only provides for “Festive, carnival or other entertainment articles”. Clearly, a graduation gown is not a festive, carnival, or entertainment article. Rather, the graduation gown represents a solemn academic tradition dating back to medieval times. Hoods seem to have served to cover the head until superseded by the skullcap. While we recognize that academic graduations are often viewed in conjunction with a festive celebration, the actual graduation ceremony itself, with each scholar garbed in a traditional cap and gown, is an important, solemn, and dignified occasion. Few graduates wear the cap and gown to post-graduation parties and/or festivities, as it is most certainly not intended for such a purpose. In short, the graduation gown is a normal article of apparel for academic exercises that honor and distinguish the scholar/graduate on that ceremonial occasion.

In your submission, you contend that the stitching used in the subject gowns does not create “well-made” seams in accordance with CBP’s standard for “fancy dress” classifiable in Chapter 61 or 62, HTSUSA, that was affirmed in Rubie’s and later set forth in detail in the CBP Informed Compliance Publication (ICP) What Every Member of the Trade Community Should Know About: Textile Costumes under the HTSUS, August 2006 (“Textile Costumes under the HTSUS”). We disagree.

The aforementioned ICP notes that a “flimsy” costume typically has loose stitching at the seams. It is our position that the costume design, type of fabric used, type of stitch, and length/tension used in a series of stitches, must all be considered in combination when making a determination as to whether the article is “well-made” or “flimsy”. In this instance, we note that the quality of the stitching and seam construction is not loose or gaping. Furthermore, the subject gowns are not designed to fit close to the body. Given the fact that the gown has been designed as a loose and flowing garment, there are fewer pressure points and less stress exerted along the seams of this garment. As a result, the seams are of sufficient strength and quality to allow for repetitive use of the gown. You have cited numerous rulings in your second submission, wherein CBP classified certain textile costumes as “festive articles” of Chapter 95, HTSUSA. You assert that these same costumes were tested by you and found to have greater seam strength than the gowns now at issue. CBP has not authenticated the samples used or assessed the validity of your test results. As we have already noted, seam quality may be affected by the type of fabric used, design of the garment, as well as the thread, stitching, and stitch tension. An article of wearing apparel constructed of delicate fabric may compare less favorably in terms of seam strength than the Jostens’ gowns if subjected to the same battery of tests cited in your submission. Yet, such delicate fabrics are routinely used to construct articles of wearing apparel. Finally, the quality of a seam is not the only criteria by which we assess the construction and durability of a textile costume. Thus, in classifying textile costumes we consider the article as a whole and carefully assess such features as styling, construction, finishing touches, and embellishments. See “Appendix”, CBP Informed Compliance Publication, What Every Member of the Trade Community Should Know About: Textile Costumes under the HTSUS, August 2006 (“Textile Costumes under the HTSUS”).

In view of the foregoing, we conclude that the “One Way” Graduation Gowns are “well-made” garments and not “flimsy” costumes of Chapter 95, HTSUSA. Although the subject graduation gowns may only be used by the wearer one time, they are durable, well-made, and intended to be worn as a normal traditional article of apparel that is appropriately used for academic commencement exercises and not for festive, carnival, or other entertainment purposes.

In both of your submissions, you assert that the “One Way” graduation gown is disposable. However, disposability does not preclude classification of the gowns as garments of Chapter 62, HTSUSA. In the following rulings, CBP has consistently found disposable and one-time-wear garments to be normal types of wearing apparel: HQ 964179, dated August 10, 2000; HQ 958389, dated September 7, 1995; HQ 957117, dated August 1, 1995; NY L82210, dated February 16, 2005; and NY I80731, dated May 13, 2002. The CBP rulings cited on pages 6-7 of your submission, wherein you assert that goods for birthday, wedding and graduation parties have been classified in heading 9505, HTSUSA, are not applicable to the articles now in question. First, we note that the cake decorations and other general party decorations/goods that were classified in these rulings may be properly classified within subheading 9505.90.4000, HTSUSA, because the provision specifically provides for “ . . . Confetti, paper spirals or streamers, party favors and noise makers; parts and accessories thereof.” Secondly, unlike the subject “One Way” Graduation Gowns, the decorative entertainment articles set forth in the CBP rulings cited in your submission, are not textile articles of wearing apparel.

Inasmuch as the “One Way” Graduation Caps and Gowns are retail packaged as a set for importation, we note that these goods cannot be classified in accordance with GRI 1. These articles are prima facie, classifiable in two different headings. The “One Way” Graduation Gowns are classifiable in heading 6211, HTSUSA, which provides, in part, for “ . . . other garments”. The “One Way” Graduation Caps are classifiable in heading 6505, HTSUSA, which provides, in part for “Hats or other headgear”. In your second submission, you suggest that the “One Way” Graduation Caps are separately classifiable in heading 9505, HTSUSA, because they are of flimsy and non-durable construction.

When goods are, prima facie, classifiable in two or more headings, they must be classified in accordance with GRI 3: (a)     The heading which provides the most specific description shall be preferred to headings providing a more general description. However, when two or more headings each refer to part only of the materials or substances contained in mixed or composite goods or to part only of the items in a set put up for retail sale, those headings are to be regarded as equally specific in relation to those goods, even if one of them gives a more complete or precise description of the goods. (b)     Mixtures, composite goods consisting of different materials or made up of different components, and goods put up in sets for retail sale, which cannot be classified by reference to 3(a), shall be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable. * * *

GRI 3 establishes a hierarchy of methods of classifying goods that fall under two or more headings. GRI 3(a) states that the heading providing the most specific description is to be preferred to a heading which provides a more general description. However, GRI 3(a) indicates that when two or more headings each refer to part only of the materials or substances in a composite good or to part only of the items in a set put up for retail sale, those headings are to be regarded as equally specific in relation to those goods, even if one of them gives a more complete or precise description than the other. In this case, the headings, 6211 and 6505, HTSUSA, each refer to only part of the items in the set. Thus, pursuant to GRI 3(a), we must consider the headings equally specific in relation to the goods. Accordingly, the goods are classifiable pursuant to GRI 3(b).

In classifying the articles pursuant to a GRI 3(b) analysis, the goods are classified as if they consisted of the component that gives them their essential character and a determination must be made as to whether or not these are goods put up in “sets for retail sale”. In relevant part, the ENs to GRI 3(b) state: (VII)    In all these cases the goods are to be classified as if they consisted of the material or component which gives them their essential character, insofar as this criterion is applicable. (VIII)   The factor which determines essential character will vary as between different kinds of goods. It may, for example, be determined by the nature of the material or component, its bulk, quantity, weight or value, or by the role of a constituent material in relation to the use of the goods.

* * *

For the purposes of this Rule, the term “goods put up in sets for retail sale” shall be taken to mean goods which:

consist of at least two different articles which are, prima facie, classifiable in different headings. Therefore, for example, six fondue forks cannot be regarded as a set within the meaning of this Rule; consist of products or articles put up together to meet a particular need or carry out a specific activity; and are put up in a manner suitable for sale directly to users without repacking (e.g., in boxes or cases or on boards).

In accordance with GRI 3(b), we find that the subject component articles are properly classified as “sets” because they consist of goods put up in a set for retail sale. The gown and coordinating hat are put up together to meet a particular need or carry out a specific activity, i.e., designation as an academic scholar for graduation commencement exercises. Furthermore, the components in this set are, prima facie, classifiable in different headings and have been put up in retail packaging suitable for sale directly to users without repacking.

There have been several court decisions on "essential character" for purposes of GRI 3(b). These cases have looked to the role of the constituent materials or components in relation to the use of the goods to determine essential character. See, Better Home Plastics Corp. v. United States, 916 F. Supp. 1265 (CIT 1996), affirmed, 119 F. 3d 969 (Fed. Cir. 1997); Mita Copystar America, Inc. v. United States, 966 F. Supp. 1245 (CIT 1997), rehearing denied, 994 F. Supp. 393 (CIT 1998), and Vista International Packaging Co., v. United States, 19 CIT 868, 890 F. Supp. 1095 (1995). See also, Pillowtex Corp. v. United States, 983 F. Supp. 188 (CIT 1997), affirmed, 171 F. 3d 1370 (Fed. Cir. 1999). The essential character of these articles can be determined by comparing each component as it relates to the use of the product. In this instance, it is the gown that imparts the essential character to the set because the distinctive design renders it immediately recognizable as a formal gown that is commonly used for graduation exercises, i.e., the long flowing sleeves, a two-ply yolk panel design with carefully pleated front panels that attach just below the shoulders, voluminous material to create a full drape to the gown and a full length that typically descends to the ankles. Furthermore, the gown is more carefully constructed with fully turned and sewn hems, double reinforced interior seams, pleats, gathers, and a zipper closure. By comparison, the mortarboard is constructed with a cardboard insert, which has been glued to the skullcap portion, and the cardboard is covered with fabric that has been folded/glued to secure it in place. Clearly, the gown was more costly to manufacture due to the voluminous material used to construct the garment and added finishing features, i.e., turned hems, gathered and pleated panels, double reinforced interior seams, and a full length zipper closure.

We disagree with your assertion that the mortarboard provides the essential character to the set due to the use and symbolism of a tassel which may be attached to the mortarboard and your contention that the cap is the focal point of the academic costume. As we have previously noted in this ruling, based on our research, it is the gown which has been identified as the distinctive garb of academic scholars. It is the graduation gown that is more closely aligned with the original clerical robes donned by scholars during medieval times. In reality, the vast majority of high schools and universities garb their graduates in cap and gown even though the cap alone would be far less expensive to purchase. In fact, the photograph submitted in Exhibit F of your second submission, which was reproduced from the U.S. News and World Report Cover (America’s Best Colleges, August 28, 2006), shows graduates in both cap and gown. We further note that the second visual representation contained at Exhibit F, taken from a Wall Street Journal article (September 12, 2006) is merely an artist’s fictional representation of a disembodied neck, head and mortarboard being carried on a conveyor belt with no depiction of the part of the body that would have been garbed in the graduation gown.

Furthermore, CBP has generally held that the garment and not the headgear imparts the essential character to a GRI 3(b) set. See HQ 959545, dated June 2, 1997, in which it was noted that by application of GRI 3(b), the “Cute and Cuddly Clown” hat that was retail packaged with the costume was also classifiable under Chapter 62, HTSUSA, because the essential character of the set was determined by the garment. See also NY B83708, dated April 14, 1997, which found that the gown imparted the essential character to a graduation cap, gown, tassel, hood, and stole set pursuant to a GRI 3(b) analysis.

In view of the foregoing, we find that the “One Way” Graduation Caps and Gowns are properly classified as retail sets pursuant to GRI 3(b) and that the gown imparts the essential character to the set. Thus, we find that NY F84383, dated April 4, 2000, correctly classified the subject graduation gowns as garments of subheading 6211.43.0091, HTSUSA. Country of Origin Marking

One comment was received in response to the proposed notice. It was noted that there is a discrepancy in the importer’s current plan to import these goods from China and the facts as set forth in NY F84383 which specifically stated that the cap and gown were to be wholly assembled/packed in Mexico and returned to the U.S.

As a point of clarification, we now wish to note that this ruling does not address the country of origin marking of the subject goods if they are imported from China. Rather, this ruling is limited to the facts as set forth in NY F84383, which indicated that the cap and gown were wholly assembled in Mexico, yet held that the words “Assembled in Mexico” would not be an acceptable country of origin marking for the imported cap and gown. As such, the country of origin marking determination contained herein would not apply to the goods now in question if they are imported from China.

Although NY F84383 correctly determined that the graduation cap and gown are “wholly assembled” in a single country, Mexico, the ruling further noted that the U.S. origin fabrics used to make the graduation cap and gown were cut to shape in Mexico. Thus, it was held that the cap and gown could not be marked “Assembled in Mexico” because the U.S. fabric had not been exported in a condition ready for assembly without further fabrication.

Section 304 of the Tariff Act of 1930, as amended (19 U.S.C. 1304), provides that, unless excepted, every article of foreign origin imported into the United States 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 United States the English name of the country of origin of the article. By enacting 19 U.S.C. 1304, Congress intended to ensure that the ultimate purchaser would be able to know by inspecting the marking on the imported goods the country of which the goods are the product. The evident purpose is to mark the goods so that at the time of purchase the ultimate purchaser may, by knowing where the goods were produced, be able to buy or refuse to buy them, if such marking should influence his will. See United States v. Friedlaender & Co., 27 C.C.P.A. 297, 302 C.A.D. 104 (1940).

The subject merchandise is a product of Mexico under 19 CFR Part 102. As such, with regard to the proposed marking statement, “Assembled in Mexico”, Section 134.43(e), CBP Regulations (19 CFR 134.43(e)), provides, in pertinent part that: Where an article is produced as a result of an assembly operation and the country of origin of such article is determined under this chapter to be the country in which the article was finally assembled, such article may be marked, as appropriate, in a manner such as the following: (1)     Assembled in (country of final assembly); (2)     Assembled in (country of final assembly) from components of (name of country or countries of origin of all components); or(3)     Made in, or product of, (country of final assembly). Since the subject merchandise was the result of an assembly operation and was finally assembled in Mexico within the meaning of 19 CFR 134.43(e), we now find that the finished merchandise may be marked "Made in Mexico" or "Assembled in Mexico”. This determination is consistent with the following rulings, which found that apparel cut and assembled overseas can be properly marked “Assembled in”: HQ 562205, dated March 26, 2002; HQ 560933, dated June 26, 1998; and HQ 560095, dated January 27, 1997.

In view of the foregoing, we have reconsidered NY F84383 and determined that based on the facts as set forth in that ruling, it was error to hold that the subject merchandise could not be marked “Assembled in Mexico”.  HOLDING:

NY F84383, dated April 4, 2000, is hereby modified, only with respect to the determination regarding the country of origin marking “Assembled in Mexico”.

If the subject merchandise has been manufactured in Mexico as a result of assembly operations and determined to be a product of Mexico under 19 CFR Part 102, it may be marked "Assembled in Mexico." However, we note that the importer now plans to import the merchandise from China. Accordingly, this determination would no longer be applicable unless the merchandise has been wholly assembled/packaged in Mexico and returned to the U.S., in the exact manner as set forth in NY F84383. A copy of this ruling letter should be attached to the entry documents filed at the time this merchandise is entered. If the documents have been filed without a copy, this ruling should be brought to the attention of the CBP Officer.

The subject merchandise, identified as the Josten’s “One Way” BDG graduation cap and gown and the “One Way” Treasure graduation cap and gown, is correctly classified in subheading 6211.43.0091, HTSUSA, which provides for, “Track suits, ski-suits and swimwear; other garments: Other garments, women’s or girls’: Of man-made fibers, Other.” The general column one rate of duty is 16 percent ad valorem. The textile category is 659. Quota/visa requirements are no longer applicable for merchandise, which is the product of World Trade Organization (WTO) member countries. Quota and visa requirements are the result of international agreements that are subject to frequent renegotiations and changes. To obtain the most current information on quota and visa requirements applicable to this merchandise, we suggest you check, close to the time of shipment, the "Textile Status Report for Absolute Quotas", which is available on our web site at www.cbp.gov. For current information regarding possible textile safeguard actions and related issues, we refer you to the web site at the Office of Textiles and Apparel of the Department of Commerce at otexa.ita.doc.gov.

Please note that the duty rates set forth in this ruling letter are merely provided for your convenience and are subject to change. The text of the most recent HTSUSA and the accompanying duty rates are provided on the World Wide Web at www.usitc.gov.

In accordance with 19 U.S.C. 1625(c), this ruling will become effective 60 days after publication in the Customs Bulletin.

Sincerely,

Myles B. Harmon, Director
Commercial and Trade Facilitation Division