CLA-2-RR:NC:TA:349 I80828
Mr. Ralph Saunders
Deringer Logistics Consulting Group
1 Lincoln Blvd., Suite 225
Rouses Point, NY 12979
RE: Classification, status under the North American Free Trade Agreement (NAFTA) and country of origin determination for a bedding set; 19 CFR 102.21(c)(1); wholly obtained or produced in a single country; 19 CFR 102.21(c)(2); tariff shift; 19 CFR 102.21(c)(4); most important assembly or manufacturing process; 19 CFR 102.21(d); sets; Article 509
Dear Mr. Saunders:
This is in reply to your letter dated April 17, 2002 requesting a classification, status under the NAFTA and country of origin determination for a bedding set which will be imported into the United States. This request is being made on behalf of C. S. Brooks Canada Inc.
FACTS:
The subject merchandise consists of a bedding set which may also be referred to as a bed in a bag set. The submitted twin sized set consists of a comforter, bed skirt, pillow sham, pillowcase, flat sheet and fitted sheet. The comforter is filled with a polyester batting fabric and quilted through all three layers. The outer shell of the comforter, pillow sham and the skirt portion of the bed skirt will be made from either a 70 percent polyester and 30 percent cotton woven printed fabric or a 50 percent polyester and 50 percent cotton woven printed fabric. The bed skirt or bed ruffle is designed to hang over the edge of a box spring on three sides. The skirt has an approximately 13-inch drop. The platform section of the bed skirt is made from a spunbond nonwoven fabric. The back portion of the pillow sham features an overlapping flap closure and the edges are finished with a flange or picture frame effect.
The flat sheet, fitted sheet and pillowcase are made from 50 percent polyester and 50 percent cotton woven printed fabric. The pillowcase is folded and sewn leaving one end open. The fitted sheet is elasticized along the sides. The flat sheet is hemmed at the top and bottom while the sides are selvage. The bedding or bed in a bag set will be packed for retail sale in a vinyl bag. The manufacturing operations are as follows:
PAKISTAN:
-polyester and cotton (70/30 or 50/50) fabric is woven.
-fabric may be bleached.
-rolls of greige or bleached fabric are shipped to Canada.
CANADA:
-polyester batting fabric is made (this item may also be made in the United States).
-nonwoven fabric for platform section of bed skirt is formed.
-50/50 polyester and cotton fabric for the sheets and pillowcase is woven.
-70/30 and 50/50 fabrics are bleached (if needed), printed and finished.
-fabrics are cut, sewn, stuffed, quilted, etc., forming the various set components.
-comforter, bed skirt, sham, pillowcase and sheets are packed for retail sale and shipped.
ISSUE:
What are the classification, eligibility under NAFTA and country of origin of the subject merchandise?
CLASSIFICATION:
The bedding set meets the qualifications of “goods put up in sets for retail sale”. The components of the sets consist of different articles which are, prima facie, classifiable in different headings. They are put up together to carry out the specific activity of furnishing a bed and they are packaged for sale directly to users without repacking. It is our opinion that the comforter is the component that gives the set its essential character.
Due to the fact that the shell of the comforter may be constructed from a 50/50 blend of fibers, it is classified using HTSUSA Section XI Note 2(A) and Subheading Note 2(A). Additional U.S. Rule of Interpretation 1(d) states that the principles of Section XI regarding mixtures of two or more textile materials shall apply to the classification of goods in any provision in which a textile material is named. The 50/50 blend comforter will be classified as if it consisted wholly of that one textile material which is covered by the heading which occurs last in numerical order among those which equally merit consideration. Even a slight change in the fiber content may result in a change of classification, as well as visa and quota requirements. The comforter may be subject to U.S. Customs laboratory analysis at the time of importation, and if the fabric is other than a 50/50 blend it may be reclassified by Customs at that time.
The applicable subheading for the submitted bedding set will be 9404.90.8522, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), which provides for mattress supports; articles of bedding and similar furnishing (for example, mattresses, quilts, eiderdowns, cushions, pouffes and pillows) fitted with springs or stuffed or internally fitted with any material or of cellular rubber or plastics, whether or not covered: other: other: quilts, eiderdowns, comforters and similar articles… with outer shell of man-made fibers. The general rate of duty will be 13.1 percent ad valorem.
The comforter, pillow sham, bed skirt, pillowcase and sheets fall within textile category designation 666. The designated textile and apparel categories and their quota and visa status are the result of international agreements that are subject to frequent renegotiations and changes. To obtain the most current information, we suggest that you check, close to the time of shipment, the U.S. Customs Service Textile Status Report, an internal issuance of the U.S. Customs Service, which is available at the Customs Web Site at www.customs.gov. In addition, the designated textile and apparel categories may be subdivided into parts. If so, visa and quota requirements applicable to the subject merchandise may be affected and should also be verified at the time of shipment.
NAFTA ELIGIBILITY:
The bedding set undergoes processing operations in Canada and possibly the United States which are countries provided for under the North American Free Trade Agreement. The bedding set at issue will be eligible for the NAFTA preference if it qualifies to be marked as a good of Canada and if it is transformed in Canada so that the non-originating material undergoes a change in tariff classification described in subdivision (t) to General Note 12, HTSUSA. For heading 9404, HTSUSA, subdivision (t), Chapter 94, rule 7, states that:
A change to subheading 9404.90 from any other chapter, except from headings 5007, 5111 through 5113, 5208 through 5212, 5309 through 5311, 5407 through 5408 or 5512 through 5516.
When the 70/30 or 50/50 polyester and cotton woven fabric for the comforter shell leaves Pakistan, it is classified in heading 5513, HTSUSA. As fabrics of heading 5513, HTSUSA, are excepted from meeting the tariff change to subheading 9404.90, HTSUSA, the non-originating material from Pakistan does not undergo the requisite change in tariff classification. Accordingly, the merchandise is not eligible for the NAFTA preference.
However, the comforter may be subject to a reduced rate of duty based upon the Tariff Preference Levels (TPL) established in Section XI, HTSUSA, Additional U.S. Note 4(a), up to the annual quantities specified in subdivision (c) of Note 4. Goods of subheading 9404.90 that are cut and sewn or otherwise assembled from specific fabrics produced or obtained outside the territory of one of the NAFTA parties, are eligible for the preferential rate of duty. Upon completion of the required documentation and up to the specified annual quantities, the comforter which is partially made of fabric (subheading 5513.11) from Pakistan, cut and sewn in Canada may be eligible for the preferential rate of Free. As the comforter determines the classification of the set, the set receives the preferential duty rate.
COUNTRY OF ORIGIN - LAW AND ANALYSIS:
On December 8, 1994, the President signed into law the Uruguay Round Agreements Act. Section 334 of that Act (codified at 19 U.S.C. 3592) provides new rules of origin for textiles and apparel entered, or withdrawn from warehouse, for consumption, on and after July 1, 1996. On September 5, 1995, Customs published Section 102.21, Customs Regulations, in the Federal Register, implementing Section 334 (60 FR 46188). Thus, effective July 1, 1996, the country of origin of a textile or apparel product shall be determined by sequential application of the general rules set forth in paragraphs (c)(1) through (5) of Section 102.21.
Section 102.21(d) addresses the treatment of sets for country of origin purposes. Section 102.21(d) provides the following:
Where a good classifiable in the HTSUS as a set includes one or more components that are textile or apparel products and a single country of origin for all of the components of the set cannot be determined under paragraph (c) of this section, the country of origin of each component of the set that is a textile or apparel product shall be determined separately under paragraph (c) of this section.
The classification of the subject bedding set, as per an essential character determination, is based on the comforter, however, per the terms of Section 102.21(d), one must determine whether or not a single country of origin exists for the entire set.
Paragraph (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 fitted sheet, flat sheet and pillowcase were wholly obtained or produced in a single country, that is, Canada, country of origin of the sheets and pillowcase is conferred in Canada. The comforter, bed skirt and shams are not wholly obtained or produced in a single country, territory or insular possession, and therefore paragraph (c)(1) of Section 102.21 is inapplicable for those items.
Paragraph (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 of the foreign materials 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:”
Paragraph (e) in pertinent part 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:”
HTSUS Tariff shift and/or other requirements
6301-6306 The country of origin of a good classifiable under heading 6301 through 6306 is the country, territory, or insular possession in which the fabric comprising the good was formed by a fabric making process.
9404.90 The country of origin of a good classifiable under subheading 9404.90 is the country, territory, or insular possession in which the fabric comprising the good was formed by a fabric-making process.
As the fabrics comprising the comforter and bed skirt are formed in more than one country, Section 102.21(c)(2) is inapplicable for the comforter and bed skirt. The pillow sham is comprised of a fabric that is formed in a single country. Following the terms of the tariff shift requirement, the country of origin of the pillow sham is conferred in Pakistan where the fabric was woven.
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.”
As the subject comforter and bed skirt are not knit and heading 6303 and subheading 9404.90, HTSUSA, are excepted from provision (ii), Section 102.21 (c)(3) is inapplicable.
Section 102.21 (c)(4) states, “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 merchandise, the most important manufacturing process occurs at the time of fabric making. Basing the country of origin determination on the fabric making process as opposed to the assembly process carries out the clear intent of Section 334 as expressed in Section 334(b)(2) and Part 102.21(c)(3)(ii). In the case of the subject comforters, the fabric making process of the outer fabric shell constitutes the most important manufacturing process. The fabric making process of the skirt portion of the bed skirt constitutes the most important manufacturing process for the bed skirt. Accordingly, the fabric making process in Pakistan, where the fabric for the outer shell of the comforter and the skirt portion of the bed skirt are formed, constitutes the most important manufacturing process and the country of origin of the subject comforter and bed skirt is Pakistan.
HOLDING:
The country of origin of the pillowcase, flat sheet and fitted sheet is Canada. The country of origin of the comforter, bed skirt and pillow sham is Pakistan. Based upon international textile trade agreements these products of Pakistan are not subject to quota or visa requirements. Although the bedding set is not eligible for the NAFTA preference, it is eligible for the tariff preferential level assuming the tariff preferential level is available up to the annual quantity specified and provided the appropriate documents are submitted.
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 181.100(a)(2). This section states that a ruling letter, either directly, by reference, or by implication, is accurate and complete in every material respect.
This ruling is being issued under the provisions of Part 181 of the Customs Regulations (19 C.F.R. 181). Should it be subsequently determined that the information furnished is not complete and does not comply with 19 CFR 181.100(a)(2), 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.
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 John Hansen at 646-733-3043.
Should you wish to request an administrative review of this ruling, submit a copy of this ruling and all relevant facts and arguments within 30 days of the date of this letter, to the Director, Commercial Rulings Division, Headquarters, U.S. Customs Service, 1300 Pennsylvania Ave. N.W., Washington, D.C. 20229.
Sincerely,
Robert B. Swierupski
Director,
National Commodity
Specialist Division