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NY I80698




May 7, 2002

CLA-2-RR:NC:TA:349 I80698

CATEGORY: CLASSIFICATION

Mrs. Alice Wagner
Tower Group International, Inc.
128 Dearborn Street
Buffalo, NY 14207

RE: Classification, status under the North American Free Trade Agreement (NAFTA) and country of origin determination for a duvet cover, futon cover and a mattress pad; 19 CFR 102.21(c)(2); tariff shift; 19 CFR 102.21(c)(4); most important assembly or manufacturing process; Article 509

Dear Mrs. Wagner:

This is in reply to your letter dated April 4, 2002 requesting a classification, status under the NAFTA and country of origin determination for a duvet cover, futon cover and a mattress pad which will be imported into the United States. This request is being made on behalf of Marina Textiles Inc.

FACTS:

The subject merchandise consists of a duvet cover, futon cover and a mattress pad. Samples were not submitted. The duvet cover, futon cover and outer shell of the mattress pad will be made from either a 70 percent polyester and 35 percent cotton woven fabric or a 50 percent polyester and 50 percent cotton woven fabric. These fabrics will be dyed and printed. The duvet cover will have a zipper or button and buttonhole closure at one end. The futon cover is designed to slip on a futon mattress. It will have a zipper closure. The quilted mattress pad will contain a layer of polyester batting and will be available in two versions. The anchor style will consist of the pad and elastic strips at the four corners. The fitted style will have a strip of the quilted fabric sewn to all four edges of the pad. The strips will vary in width depending on the thickness of the mattress. You have indicated that the duvet cover will not contain any embroidery, lace, braid, edging, trimming, piping or applique work. The manufacturing operations for these items are as follows:

DUVET COVER/FUTON COVER:
PAKISTAN:
-polyester and cotton (70/30 or 50/50) fabric is woven. -fabric is dyed and printed.
-rolls of fabric are shipped to Canada.

CANADA:
-fabrics are cut to size, creating top, bottom and side panels. -top and bottom panels sewn together, zipper or buttons/buttonholes added to create the duvet cover.
-top, bottom and side panels sewn together, zipper added to create futon cover. -duvet cover and futon covers are packed and shipped.

MATTRESS PAD:
PAKISTAN:
-polyester and cotton (70/30 or 50/50) fabric is woven. -fabric is bleached.
-rolls of fabric are shipped to Canada.

CANADA:
-polyester batting fabric is made (this item may also be made in the United States). -two layers of the polyester/cotton fabric and the batting are quilted together. -quilted fabric is cut into main and side panels. -anchor style is hemmed and elastic is attached. -side panels are sewn to main panel to make the fitted style. -mattress pads are packed and shipped.

ISSUE:

What are the classification, eligibility under NAFTA and country of origin of the subject merchandise?

CLASSIFICATION:

Due to the fact that the duvet cover, futon cover and mattress pad may be constructed from a 50/50 blend of fibers, they are 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 covers and pad will be classified as if they 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 covers and pad 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 they may be reclassified by Customs at that time.

The applicable subheading for the duvet cover will be 6302.22.2030, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), which provides for bed linen, table linen, toilet linen and kitchen linen: other bed linen, printed: of man-made fibers: other: other. The rate of duty will be 11.7 percent ad valorem.

The applicable subheading for the futon cover will be 6304.93.0000, HTSUSA, which provides for other furnishing articles, excluding those of heading 9404: other: not knitted or crocheted, of synthetic fibers. The duty rate will be 9.6 percent ad valorem.

The applicable subheading for the mattress pad will be 9404.90.9522, 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: other with outer shell of man-made fibers. The general rate of duty will be 8.7 percent ad valorem.

The duvet cover, futon cover and mattress pad 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 duvet cover, futon cover and mattress pad undergo processing operations in Canada and possibly the United States which are countries provided for under the North American Free Trade Agreement. The duvet cover, futon cover and mattress pad at issue will be eligible for the NAFTA preference if they qualify to be marked as a good of Canada and if they are 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 headings 6302, 6304 and 9404, HTSUSA, the appropriate subdivision (t) rules state that:

A change to headings 6301 through 6302 from any other chapter, except from headings 5106 through 5113, 5204 through 5212, 5307 through 5308 or 5310 through 5311, chapters 54 through 55, or headings 5801 through 5802 or 6001 through 6002, provided that the good is both cut (or knit to shape) and sewn or otherwise assembled in the territory of one of more of the NAFTA parties.

A change to headings 6304 through 6310 from any other chapter, except from headings 5106 through 5113, 5204 through 5212, 5307 through 5308 or 5310 through 5311, chapters 54 through 55, or headings 5801 through 5802 or 6001 through 6002, provided that the good is both cut (or knit to shape) and sewn or otherwise assembled in the territory of one of more of the NAFTA parties.

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 fabrics for the duvet cover, futon cover and mattress pad leave Pakistan, they are classified in heading 5513 or 5514, HTSUSA, depending on the weight. As fabrics of headings 5513 and 5514, HTSUSA, are excepted from meeting the tariff change to subheading 9404.90 and headings 6301 and 6302, 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.

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.

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.” The duvet cover, futon cover and mattress pad 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.

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 mattress pad are formed in more than one country, Section 102.21(c)(2) is inapplicable for the mattress pad. The duvet cover and futon cover are comprised of fabrics that are formed in a single country. Following the terms of the tariff shift requirement, the country of origin of the duvet cover and futon cover is conferred in Pakistan where the fabrics were 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 mattress pad is not knit and subheading 9404.90, HTSUSA, is 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 mattress pad, it is our opinion that the fabric making process of the outer fabric shell constitutes the most important manufacturing process. Accordingly, the fabric making process in Pakistan, where the fabric for the outer shell of the mattress pad is formed, constitutes the most important manufacturing process and the country of origin of the subject mattress pad is Pakistan.

HOLDING:

The country of origin of the duvet cover, futon cover and mattress pad is Pakistan. Based upon international textile trade agreements duvet covers of Pakistan are subject to quota and visa requirements. The duvet cover, futon cover and mattress pad are not entitled to the NAFTA “CA” special duty.

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,

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