HQ 959395: Country of origin determination for a cape and scarf;Section 102.21(c)(2); tariff shift; Section 102.21(c)(4); most important manufacturing process;NAFTA not applicable

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                            HQ 959395
                                 
August 6, 1996                   
CLA-2   RR:TC:TE  959395  jb

CATEGORY: Classification

Sharron A. Lintner
F.W. Myers & Co., Inc.
P.O. Box 188
Champlain, NY 12919

RE:  Country of origin determination for a cape and scarf;
Section 102.21(c)(2); tariff shift;
     Section 102.21(c)(4); most important manufacturing process;
NAFTA not applicable

Dear Ms. Lintner:

     This is in reply to your letter dated May 21, 1996, on
behalf of your client, Scarves and Allied Arts, requesting a
country of origin determination for a cape and scarf which will
be imported into the United States.  Samples were submitted to
this office for examination.

FACTS:

     The first item, referred to as a shawl, style 520/260, is
made of 100 percent acrylic woven fabric.  It is rectangular in
shape and measures approximately 71 inches by 45 inches and is
slit lengthwise in the center for approximately 37 inches.  It is
worn around the shoulders and extends to cover much of the body.

     The second item, style 600/260, is a woven polyester scarf
measuring approximately 53 inches by 10.5 inches.

     The manufacturing operations for the subject merchandise are
as follows:

     COUNTRY X (not the United States, Canada or Mexico)

     - fabric is formed.






     CANADA

     - fabric is cut;
     - fabric is sewn.

     * We will assume that the non-originating fabric also does
not originate in Israel.  Should this be an incorrect assumption
this ruling will not be binding and a new ruling should be
requested.

ISSUE:

     1. What is the proper tariff classification and duty rate
for the subject merchandise?

     2.  Whether the subject merchandise is eligible for duty
free treatment under the North          American Free Trade
Agreement (NAFTA)?

     3.  What is the country of origin of the subject
merchandise?        

     
LAW AND ANALYSIS:

Tariff Classification

     Classification of merchandise under the Harmonized Tariff
Schedule of the United States Annotated is in accordance with the
General Rules of Interpretation (GRI).  GRI 1 requires that
classification be determined according to the terms of the
headings and any relative section or chapter notes.  Where goods
cannot be classified solely on the basis of GRI 1, the remaining
GRI will be applied, in the order of their appearance.

     Heading 6202, HTSUS, provides for, among other things,
women's or girls' capes and cloaks.  Although you describe style
520/260 as a shawl, the submitted item provides much more
coverage than a shawl and is more similar to the capes, cloaks,
and ponchos provided for in heading 6202, HTSUS.  Additionally,
we refer you to three Customs rulings which classified similar
merchandise as capes in heading 6202, HTSUS: HQ 087172, dated
November 19, 1990; HQ 086974, dated August 3, 1990; and 085416,
dated November 30, 1989.  Accordingly, based on the body
coverage, the garment's function, and the above stated rulings,
style 520/260 is classifiable as a cape in subheading
6202.13.4020, HTSUSA, which provides for women's or girls'
overcoats, carcoats, capes, cloaks, anoraks (including ski-jackets), windbreakers and similar articles (including padded,
sleeveless jackets), other than those of heading 6204: overcoats,
carcoats, capes, cloaks and similar coats: of man-made fibers:
other: other; other: women's.



     Heading 6214, HTSUS, provides for, among other things,
scarves.  Style 600/260 is properly classified in subheading
6214.30.0000, HTSUSA, which provides for, shawls, scarves,
mufflers, mantillas, veils and the like: of synthetic fibers.

NAFTA Eligibility

     The subject cape and scarf undergo processing operations in
Canada which is a country provided for under the North American
Free Trade Agreement (NAFTA).  General Note 12, HTSUSA,
incorporates Article 401 of the North American Free Trade
Agreement (NAFTA) into the HTSUSA.  Note 12(a) provides, in
pertinent part:

                              *   *   *

     (ii) Goods that originate in the territory of a NAFTA party
under subdivision (b) of this            note and that qualify to
be marked as goods of Canada under the terms of the         
marking rules... and are entered under a subheading for which a
rate of duty appears in        the "Special" subcolumn followed
by the symbol "CA" in parentheses, are eligible for          such
duty rate... . [Emphasis added]

Accordingly, the cape and scarf at issue will be eligible for the
"Special" "CA" rate of duty provided they are NAFTA "originating"
goods under General Note 12(b), HTSUSA, and they qualify to be
marked as goods of Canada.  Note 12(b) provides in pertinent
part,

     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

                              *   *   *

The subject merchandise qualifies for NAFTA treatment only if the
provisions of General Note 12(b)(ii)(A) are met, that is, if the
merchandise is transformed in the territory of Canada so that the
non-originating material (the fabric formed in Country X)
undergoes a change in tariff classification as described in
subdivision (t).  

     For the cape, subdivision (t), Chapter 62, rule 5, states
that:

     A change to subheadings 6202.11 through 6202.13 from any
     other chapter, except from headings 5106 through 5113, 5204
     through 5212, 5307 through 5308 or 5310 through 5311,
     chapter 54, or headings 5508 through 5516, 5801 through 5802
     or 6001 through 6002, provided that:

     (A) the good is both cut and sewn or otherwise assembled in
the territory of one or more        of the NAFTA parties, and

     (B) the visible lining fabric listed in chapter rule 1 for
chapter 62 satisfies the tariff change             requirements
provided therein.

     For the scarf, subdivision (t), Chapter 62, rule 38, states:

     A change to headings 6213 through 6217 from any other
     chapter, except from headings 5106 through 5113, 5204
     through 5212, 5307 through 5308 or 5310 through 5311,
     chapter 54, or headings 5508 through 5516, 5801 through 5802
     or 6001 through 6002, provided that the good is both cut and
     sewn or otherwise assembled in the territory of one or more
     of the NAFTA parties.

     When the fabric for the subject cape and scarf leaves
Country X, it is classifiable as goods made from woven synthetic
fabrics of Chapter 54 or headings 5508 through 5516.  As fabrics
of Chapter 54 and headings 5508 through 5516 are excepted by
subdivision (t) for both headings 6202 and 6214, HTSUS, the non-originating material from Country X does not undergo the
requisite change in tariff classification.  Accordingly, the
merchandise is not eligible for the NAFTA preference.

     Additionally, it should be noted that even if the fabric had
undergone the requisite change in tariff classification, the
subject merchandise would not be eligible for the NAFTA
preference.  Subdivision (t) for both heading 6202, HTSUS, and
6214, HTSUS, requires not only a change in tariff classification
but also that the good be cut and sewn or otherwise assembled in
the territory of one or more of the NAFTA parties.  Assembly has
generally been interpreted to consist of the joining of
components.  Hemming is the only form of sewing that is performed
at the assembly process of the subject merchandise.  As hemming
alone does not conform to the definition of "sewing" or otherwise
"assembly", the manufacturing process undergone in Canada does
not qualify as a sewing or assembly process.

Country of origin

     On September 5, 1995, Customs published in the Federal
Register (60 FR 46188) T.D. 95-69 which set forth final
amendments to the Customs Regulations to implement the provisions
of section 334 (b) of the Uruguay Round Agreements Act ("the
Act"), Public Law 103-465, 108 Stat. 4809, hereinafter 19 U.S.C.
3592, regarding the country of origin of textile and apparel
products.  These final regulations apply to goods entered, or
withdrawn from warehouse, for consumption on or after July 1,
1996.  The regulatory provisions in T.D. 95-69 that implement the
basic origin principles of section 334(b) of the Act are
contained in a new 102.21 of the Customs Regulations (19 CFR
102.21).

     The final rule for the rules for determining country of
origin of a good for purposes of Annex 311 of the NAFTA was
published by Customs on June 6, 1996, in the Federal Register (61
FR 28932).  Therein it was stated, in pertinent part:

     New 102.21 was modeled on the approach taken in the interim
     Part 102 texts as published in T.D. 94-4 and thus
     incorporates a general statement of applicability (paragraph
     (a)), various definitions (paragraph (b)), general origin
     rules (paragraphs (c) and (d)), and specific tariff shift
     and/or other requirements (paragraph (e)) that apply under
     the second general rule.  Of particular note for purposes of
     the present document is the definition of "textile or
     apparel product" in 102.21(b)(5) which delineates the class
     of goods covered by the 102.21 rules.  That definition
     identifies those goods with reference to classification in
     the HTSUS and refers to Chapters 50 through 63 (that is, all
     of Section XI) of the HTSUS as well as to specific headings
     and 6-, 8- or 10-digit subheadings of the HTSUS that fall
     outside Section XI.  Thus, if a good is classifiable in an
     HTSUS provision listed in 102.21(b)(5), precedence must be
     given to the 102.21 rules over any other regulatory
     provision with regard to that good, including any origin
     rules contained elsewhere in part 102.

Accordingly, as the subject merchandise is classified in headings
6202, HTSUS, and 6214, HTSUS, textile articles identified by
102.21(b)(5), the 102.21 rules take precedence over any other
rules of origin to determine the appropriate country of origin.

     Section 102.21(c)(1) states that, "The country of origin of
a textile or apparel product is the single country, territory, or
insular possession in which the good was wholly obtained or
produced".  As the subject merchandise was not wholly obtained or
produced in a single country, Section 102.21(c)(1) is not
applicable.

     Section 102.21(c)(2) states that, "Where the country of
origin of a textile or apparel product cannot be determined under
paragraph (c)(1) of this section, the country of origin of the
good is the single country, territory, or insular possession in
which each foreign material incorporated in that good underwent
an applicable change in tariff classification, and/or met any
other requirement, specified for the good in paragraph (e) of
this section."

     Section 102.21(e) states that, "The following rules shall
apply for purposes of determining the country of origin of a
textile or apparel product under paragraph (c)(2) of this
section":

     6201-6208      If the good does not consist of two or more
component parts, a                 change to heading 6201 through
6208 from any heading outside                     that group,
except from heading 5007, 5111 through 5113, 5208                     through 5212,  5309 through 5311, 5407 through 5408,
5512                     through 5516, 5602 through 5603, 5801
through 5806, 5809                 through 5811, 5903, 5906
through 5907, and 6217, and subheading                 6307.90,
and provided that the change is the result of a fabric-                    making process.     

     6213-6214      The country of origin of a good classifiable
under heading 6213                 through 6214 is the country,
territory, or insular possession in                    which the
fabric comprising the good was formed by a fabric-                    making process.

     Section 102.21(e) states that for heading 6202, HTSUS,
fabrics of Chapter 54 and headings 5512 through 5516 are excepted
by Section 102.21(c)(2).  As the fabric for the subject cape does
not undergo the requisite change in tariff classification,
Section 102.21(c)(2) is inapplicable.  In the case of the subject
scarf, Section 102.21(e) states that for heading 6214, HTSUS,
country of origin is conferred by the country in which the fabric
comprising the good was formed by a fabric-making process.  As
such, for the scarf, the country of origin is Country X.

     Section 102.21(c)(3) states that, "Where the country of
origin of a textile or apparel product cannot be determined under
paragraph (c)(1) or (2) of this section":

     (i) If the good was knit to shape, the country of origin of
the good is the single country,         territory, or insular
possession in which the good was knit; or    

          (ii) Except for goods of heading 5609, 5807, 5811,
6213, 6214, 6301 through 6306, and          6308, and subheadings
6209.20.5040, 6307.10, 6307.90, and 9404.90, 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.

     Section 102.21(b)(6) defines "wholly assembled" as:

     The term "wholly assembled" when used with reference to a
     good means that all components, of which there must 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.
     
     The subject cape is not knit and therefore provision (i) of
Section 102.21(c)(3) is not applicable.  Provision (ii) of
Section 102.21(c)(3) is also not applicable because the subject
cape does not meet the definition of "wholly assembled" which
requires that the good consist of at least two components.

     Section 102.21(c)(4) states that, "Where the country of
origin of a textile or apparel product cannot be determined under
paragraph (c) (1), (2) or (3) of this section, the country of
origin of the good is the single country, territory, or insular
possession in which the most important assembly or manufacturing
process occurred.  In the case of the subject cape, the most
important manufacturing process occurs at the time of the fabric
making.  Consequently, the country of origin of the subject cape
is Country X.

HOLDING:

     The subject cape, referenced style 520/260, is properly
classified in subheading 6202.13.4020, HTSUSA, which provides
for, women's or girls' overcoats, carcoats, capes, cloaks,
anoraks (including ski-jackets), windbreakers and similar
articles (including padded, sleeveless jackets), other than those
of heading 6204: overcoats, carcoats, capes, cloaks and similar
coats: of man-made fibers: other: other; other: women's.  The
applicable rate of duty is 29.1 percent ad valorem.  The quota
category is 635.

     The subject scarf, referenced style 600/260, is properly
classified in subheading 6214.30.0000, HTSUSA, which provides
for, shawls, scarves, mufflers, mantillas, veils and the like: of
synthetic fibers.  The applicable rate of duty is 8.5 percent ad
valorem.  The quota category is 659.

     The country of origin of the subject cape and scarf is
Country X and should be marked accordingly to reflect that
origin, such as "Made in Country X".  

     The subject merchandise is not eligible for the NAFTA
preference and does not qualify for the tariff preference level
provided for in Additional U.S. Note 3(a) to Section XI, HTSUS.


     The holding set forth above applies only to the specific
factual situation and merchandise identified in the ruling
request.  This position is clearly set forth in section 19 CFR
177.9(b)(1).  This section states that a ruling letter is issued
on the assumption that all of the information furnished in the
ruling letter, either directly, by reference, or by implication,
is accurate and complete in every material respect.

     Should it be subsequently determined that the information
furnished is not complete and does not comply with 19 CFR
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 Customs, it is recommended that a new ruling
request be submitted in accordance with 19 CFR 177.2.  



                              Sincerely,




                              John Durant, Director
                              Tariff Classification Appeals
Division