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HQ 963233




December 13, 2000

CLA-2 RR:CR:GC 963233ptl

CATEGORY: CLASSIFICATION

TARIFF NO.: 9404.90.10; 9404.90.20

Mr. Samuel I. Hayes
Nature's Way Therapeutic Products, Inc.
91021-1427 Bellevue Avenue
West Vancouver, BC
Canada V7V 3N3

RE.: Reconsideration of NY E84744; Heatable Sak, flax-filled pillow "Multirest"; HQ 975617.

Dear Mr. Hayes:

This is in response to your letter of October 4, 1999, to the Director, National Commodity Specialist Division, New York, requesting reconsideration of the classification under the Harmonized Tariff Schedule of the United States (HTSUS), of a flax filled article referred to as a heatable sak in New York Ruling Letter (NY) E84744, issued to you on August 3, 1999. Your letter was referred to this office for reply. We regret the delay.

Although NY E84744 classified several articles, you have only requested reconsideration of the heatable sak. In NY E84744, the heatable sak was classified in heading 9404, HTSUS, which provides for articles of bedding and similar furnishing. You contend that the heatable sak is classifiable in heading 1404, HTSUS, which provides for vegetable products not elsewhere specified or included. You also requested a determination whether the article qualifies for preferential treatment under the North American Free Trade Agreement (NAFTA).

We have reviewed NY E84744 and have determined that it is not in error. We affirm the classification of the heatable sak in either subheading 9404.90.1000 or 9404.90.2000, HTSUS, pursuant to the analysis set forth below. This ruling does not affect the classification of the other articles in NY E84744.

FACTS:

The "Heatable Sak" is a sealed fabric pouch, measuring approximately 8.5 x 13 inches, loosely filled with flax seeds (3.5 lbs.). The pouch of the sample provided is made of knitted velour fabric. In the original classification request, dated July 8, 1999, the following description of the article was provided: "This Heatable sak provides fully adjustable cervical support, conforming to and supporting the head and neck, while the aroma therapy facilitates a complete relaxation of the body." In the request for reconsideration, the article's primary use is claimed to be as a heating pad and aromatherapy adjunct. However, you have also mentioned its functionality as a pillow. You state that the heatable sak can be "used when traveling as cervical or lumbar support." The article's flax seed filling is claimed to allow the article to retain both heat (from a microwave) and cold (from freezing). In the original submission, the article is said to retain heat for approximately 15 minutes. This period increases to a half-hour in the request for reconsideration as you stress its aromatherapy uses.

The knitted velour fabric forming the shell of the heatable sak is a product of Korea. The fabric is imported in bulk into Canada where it is cut, formed, sewn and filled with Canadian produced flax seed.

ISSUE:

Whether a flax filled product identified as a "Heatable Sak" is properly classified in heading 9404, HTSUS, the provision for articles of bedding and similar furnishings, including pillows, or in heading 1404, HTSUS, the provision for other vegetable products not elsewhere specified or included?

LAW AND ANALYSIS:

Merchandise is classifiable under the Harmonized Tariff Schedule of the United States (HTSUS) in accordance with the General Rules of Interpretation (GRIs). The systematic detail of the HTSUS is such that virtually all goods are classified by application of GRI 1, that is, 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 GRIs may then be applied in order.

The HTSUS headings under consideration are as follows:

1404 Vegetable products not elsewhere specified or included: 1404.90.00 Other

9404 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:

9404.90 Other:
Pillows, cushions and similar furnishings:

9404.90.10 Of cotton (369)

9404.90.20 Other

Before we ascertain whether the article is eligible for preferential treatment under the NAFTA, we must first determine its classification under the HTSUS.

In support of your contention that the heatable sak should not be classified as a pillow, you state "[U]nder your regulations the minimum size of a pillow is 10" x 10"." Those dimensions were obtained from a Headquarters Ruling (HQ 957617, dated May 3, 1995) which classified an article of those dimensions as a pillow. In that ruling, a distinction was made, not only of the size of the different exemplars, but also the shapes of other articles (some in the shape of a motorcycle and a punching bag) and the fact that they were not designed to afford support. The "Mud Cloth Pillow" of HQ 957617 was classified in heading 9404, HTSUS, not because of its size, but rather because of its ability to provide support to the user.

In the instant case, your own language in seeking classification states that the person using the heatable sak "places the pillow under their neck and head for shoulder and cervical support". In the request for reconsideration, you state that the article can be used when traveling as cervical or lumbar support. Clearly, the article is capable of providing support to various portions of the body while also being used as an aromatherapy prop.

Based on the above analysis of the article, its construction and prospective uses, we determine that the heatable sak does possess the characteristics of a pillow in that it can provide support to the user. Heading 1404, HTSUS, is a basket provision wherein a variety of merchandise is classified when no other heading more specifically provides for the article. That is not the situation in this case. The heatable sak is more accurately described within the provisions of subheading 9404.90, HTSUS, as a pillow and, is therefore classified in that subheading.

NAFTA Preference:

The rules for determining whether the pillow is an "originating good" of Canada and thus eligible for preferential tariff treatment under the provisions of the North American Free Trade Act are provided for in General Note 12 of the HTSUS, which provides, in relevant part, as follows:

(a) Goods in the territory of a party to the North American Free Trade Agreement (NAFTA) are subject to duty as provided therein. For the purposes of this note –

(a)(i) 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 set forth in regulations issued by the Secretary of the Treasury (whether or not the goods are marked), when such goods are imported into the customs territory of the United States 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, in accordance with section 201 of the North American Free Trade Implementation Act.

(b) For 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 [de minimis provision], 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....

(iii) they are goods produced entirely in the territory of Canada, Mexico and/or the United States exclusively from originating materials....

Thus, by operation of GN 12, the eligibility of an article for NAFTA preferential treatment is predicated upon a finding that the goods are originating in the territory of a NAFTA party under GN 12(b) and that they are goods of Canada or Mexico under the NAFTA Marking Rules.

The components of the heatable sak are the outer shell knit fabric and the flax seed filler. Because the flax seed is grown in Canada, it qualifies as an originating material. However, because the knit shell is milled in Korea, the goods are not wholly produced in the territory of a NAFTA party. Therefore the heatable sak qualifies for NAFTA treatment only if the provisions of General Note 12(b)(ii)(A) are met; i.e., if the merchandise is transformed in the territory of Canada so that the non originating materials (Korean velour) undergo a change in tariff classification or satisfy the rules set forth in subdivisions (r), (s), and (t) of this note.

Because the heatable sak is classified in subheading 9404.90, HTSUS, we apply the tariff shift rule for that subheading. General Note 12(t)/94.7 states "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". The outer shell fabric is knit in Korea. The tariff shift rule for subheading 9404.90 excludes woven fabrics, but does not exclude knit fiber fabrics. Therefore, as long as the outer fabric shell of the heatable sak is a knit article (a product of Chapter 60), the article will meet the tariff shift requirement. Therefore, the article qualifies as a NAFTA originating good.

However, as indicated earlier, to receive the NAFTA preferential duty rate for goods from Canada, the heatable sak must be considered a good of Canada under the NAFTA Marking Rules (Part 102, Customs Regulations). Heatable saks classified in subheading 9404.90.10, HTSUS (outer shell of cotton), are subject to the rules of origin for textile and apparel products set forth in 19 CFR 102.21. Heatable saks classified in subheading 9404.90.20, HTSUS (outer shell of a fabric other than cotton), are subject to the rules of origin set forth in 19 CFR 102.11. Applying the applicable rules in sections 102.21 and 102.11 to the heatable saks classifiable in subheading 9404.90.10 and 9404.90.21, respectively, results in the articles being considered products of Korea.

However, the NAFTA preference override contained in 19 CFR 102.19(a) states, in relevant part, " if a good which is originating within the meaning of §181.1(q) [referring to General Note 12, HTSUS] of this chapter is not determined under §102.11(a) or (b) or §102.21 to be a good of a single NAFTA country, the country of origin of such good is the last NAFTA country in which that good underwent production other than minor processing, provided that a Certificate of Origin has been completed and signed for the good". Because the heatable sak is cut to form, sewn and filled in Canada with Canadian flax seed, it is considered a product of Canada, and is eligible for the NAFTA "CA" preferential duty rate.

HOLDING:

A flax filled pillow, identified as "Heatable sak" is classified in subheading 9404.90.10, HTSUS, which provides for [m]attress 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: [o]ther: [p]illows, cushions and similar furnishings: of cotton, when the outer shell fabric is of cotton and in subheading 9404.90.20, HTSUS, which provides for [m]attress 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: [o]ther: [p]illows, cushions and similar furnishings: other, when the outer shell fabric is made of a fabric other than cotton.

The "Heatable Sak" with its knit outer shell is eligible for preferential duty treatment under the NAFTA as a good of Canada.

NY E84744 is affirmed.

Sincerely,

John Durant, Director

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