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NY I86872





October 24, 2002

CLA-2-RR:NC:TA:349 I86872

CATEGORY: CLASSIFICATION

Ms. Ada Yiu
Charister Home Fashion Inc.
31 Progress Avenue, Unit #6
Scarborough, Ontario
Canada M1P 4S6

RE: Classification, status under the North American Free Trade Agreement (NAFTA) and country of origin determination for a duvet cover, comforter, shams, bed skirt, sheet set, cushions, towels and a curtain and valance 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(c)(5); last country where an important assembly or manufacturing process occurred; 19 CFR 102.19(b); NAFTA override; Article 509

Dear Ms. Yiu:

This is in reply to your letter dated September 15, 2002, received by this office on September 27, 2002, requesting a classification, status under the NAFTA and country of origin determination for a duvet cover, comforter, sham, bed skirt, sheet set, cushions, towels and a curtain and valance set which will be imported into the United States.

FACTS:

The subject merchandise consists of a duvet cover, comforter, sham, bed skirt, sheet set, cushions, towels and a curtain and valance set. You submitted samples of the comforter, sham, bed skirt, pillowcase, cushions, curtain valance and a sample of the flat sheet from China. Samples of the duvet cover, curtain panel, flat and fitted sheets were not submitted. The duvet cover is made from two fabrics. The top or face fabric is made from a yarn dyed jacquard woven fabric. This fabric will be made from either 50 percent cotton and 50 percent polyester, 50 percent cotton 25 percent polyester and 25 percent rayon or a polyester and rayon blend. The fabric on the other side will be made from either a 100 percent cotton woven damask stripe or a 50 percent cotton and 50 percent polyester dyed fabric. A cording will be inserted in the edge seams and the cover will have a zippered opening. The comforter will also have different shell fabrics. The face or top fabric will be made from either a jacquard fabric or another complex woven fabric. They will be composed of the same fiber contents as the jacquard side of the duvet cover. The fabric on the back will be the same as the fabrics used on the back of the duvet. A 10-millimeter wide self-fabric piping is inserted in the edge seams. The comforters are filled with a polyester batting fabric and quilted through all three layers.

The pillow sham is made from the same fabrics as the duvet cover. There is an overlapping flap closure on the back and the edges are finished with a flange or picture frame effect. The flange portion contains a thin layer of polyester fiberfill. A cording is inserted in the edge seams. The skirt portion of the tailored bed skirt is made from the same jacquard fabrics as the duvet cover. The platform section is made from a 50 percent cotton and 50 percent polyester plain woven fabric. The skirt is sewn to three sides of the platform section and it has a 14-inch drop. The flat sheet, fitted sheet and pillowcases are made from a 100 percent cotton damask stripe fabric. A row of piping is inserted in the top hem of the flat sheet and the hem of the pillowcases. An approximately 4-inch wide strip of the jacquard woven fabric used on the duvet cover is overlaid along the top hem of the flat sheet and on the hem at the open end of the pillowcases. The fitted sheet was not examined but for the purpose of this ruling is assumed to not contain piping or the jacquard trimming. The flat sheet, fitted sheet and pillowcases are packed together for retail sale.

The outer shell of the cushion is made from the jacquard fabrics used in the duvet cover. They will be either 18 x 18 inches or 12 x 16 inches. The cushion is stuffed with a loose polyester fiberfill and the edges may or may not be finished with cording. The curtain valance and curtain panel are made from two fabrics. The face portion of both items is made from the jacquard fabrics used on the duvet cover and they are lined with either the damask stripe fabric or the dyed polyester and cotton fabric. You indicate that these items may be finished with a cording. The curtain valance and panels are packed together for retail sale. The towels are made from 100 percent cotton terry fabric and will be imported in bath, hand and fingertip sizes. An approximately 3-inch wide strip of the jacquard fabric is overlaid along one end of the towel. The jacquard overlay is trimmed with cord and finished with a corded fringe.

The manufacturing operations for these items are as follows:

CHINA:
-cotton damask stripe and 50 cotton/50 polyester fabrics are woven. -50/50 fabric is dyed.
-fabrics are formed into flat sheets, fitted sheets and pillowcases. -sheets and pillowcases are packed individually and shipped to Canada. -cotton terry toweling fabric is woven.
-terry fabric is cut and sewn to form the towels. -towels are shipped to Canada.

PAKISTAN:
-polyester and cotton (50/50) fabric (for bed skirt platform) is woven. -fabric is bleached and finished.
-rolls of fabric are shipped to Canada.

TURKEY:
-man-made fiber cording is formed (used on duvet cover, cushion, curtain, valance, towels and sham).
-cording is shipped to Canada.

UNITED STATES:
-50 cotton/50 polyester, 50 cotton/25 polyester/25 rayon or polyester/rayon blend jacquard (or other complex weave) fabric is woven from U.S. made yarns/fibers. -rolls of fabric are shipped to Canada

CANADA:
-polyester batting fabric is formed.
-polyester fiberfill is made.
-flat sheets from China are cut to size to form the back portion of the duvet cover, the back portion of the comforter, the back portion of the sham, the back portions of the the curtain panel and valance,
-jacquard fabric from the U.S. is cut to form the face portion of the duvet cover, the face portion of the comforter, the face portion of the sham, the skirt portion of the bed skirt, the trim on the flat sheets and pillowcases, the shell of the cushion, the face portions of the curtain panel and valance, and the trim for the towels. -50 cotton/50 polyester fabric from Pakistan is cut to size to form the platform section of the bed skirt..
-polyester batting is cut to size.
-U.S. and Chinese fabrics are sewn creating the duvet cover, shams, curtain panel and valance.
-U.S. and Chinese fabrics are sewn, stuffed with Canadian batting fabric and quilted, creating the comforter.
-U.S. and Pakistani fabrics are sewn to form the bed skirt. -U.S. fabric is sewn and stuffed with Canadian fiberfill to form the cushion. -U.S. jacquard fabric trim is sewn to the Chinese flat sheet, pillowcases and towels. -cording from Turkey is added to the duvet cover, cushion, curtain, valance, sham and towels
-the flat sheet, fitted sheet and pillowcases are packed as a retail set and shipped as are the curtain panels and valances.
-comforter, duvet cover, sham, bed skirt, cushions and towels are packed and shipped.

ISSUE:

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

CLASSIFICATION:

The applicable subheading for the duvet cover will be 6302.32.1060, Harmonized Tariff Schedule of the United States Annotated, (HTSUSA), which provides for bed linen, table linen, toilet linen and kitchen linen: other bed linen: of man-made fibers: containing any embroidery, lace braid, edging, trimming, piping or applique work: other: other. The general rate of duty will be 15.3 percent ad valorem.

The applicable subheading for the comforter will be 9404.90.8522, 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 applicable subheading for the pillow sham made from the cotton/polyester jacquard fabric or the chief weight polyester jacquard fabric 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 general rate of duty will be 9.6 percent ad valorem.

The applicable subheading for the pillow sham made from the cotton/polyester/rayon jacquard fabric or the chief weight rayon jacquard fabric will be 6304.99.6020, HTSUSA, which provides for other furnishing articles, excluding those of heading 9404: other: not knitted or crocheted, of other textile materials: other of artificial fibers. The general rate of duty will be 3.8 percent ad valorem.

The applicable subheading for the bed skirt made from the cotton/polyester jacquard fabric or the chief weight polyester jacquard fabric will be 6303.92.2020, HTSUSA, which provides for other curtains (including drapes) and interior blinds; curtains or bed valances: other: of synthetic fibers: other. The general rate of duty will be 11.6 percent ad valorem.

The applicable subheading for the bed skirt made from the cotton/polyester/rayon jacquard fabric or the chief weight rayon jacquard fabric will be 6303.99.0010, HTSUSA, which provides for other curtains (including drapes) and interior blinds; curtains or bed valances: other: of other textile materials of artificial fibers. The general rate of duty will be 11.6 percent ad valorem.

The sheet set meets the qualifications of "goods put up in sets for retail sale". The applicable subheading for the sheet set will be 6302.31.5020, HTSUSA, which provides for bed linen, table linen, toilet linen and kitchen linen: other bed linen: of cotton: containing any embroidery, lace, braid, edging, trimming, piping or applique work: not napped sheets. The general rate of duty will be 21.5 percent ad valorem.

The applicable subheading for the cushion will be 9404.90.2000, HTSUSA, which provides for mattress supports; articles of bedding and similar furnishing (for example, mattresses, quilts, eiderdowns, cushions, pouffes and pillows) fitted with any material or of cellular rubber or plastics, whether or not covered: other: pillows, cushions and similar furnishings: other. The general duty rate will be 6 percent ad valorem.

The applicable subheading for the curtain panel and window valance made from the cotton/polyester jacquard fabric or the chief weight polyester jacquard fabric will be 6303.92.2010, HTSUSA, which provides for other curtains (including drapes) and interior blinds; curtains or bed valances: other: of synthetic fibers: other window curtains (including drapes) and window valances. The general rate of duty will be 11.6 percent ad valorem.

The applicable subheading for the curtain panel and window valance made from the cotton/polyester/rayon jacquard fabric or the chief weight rayon jacquard fabric will be 6303.99.0010, HTSUSA, which provides for other curtains (including drapes) and interior blinds; curtains or bed valances: other: of other textile materials of artificial fibers. The general rate of duty will be 11.6 percent ad valorem.

The applicable subheading for the bath, hand and fingertip towels will be 6302.60.0020, HTSUSA, which provides for bed linen, table linen, toilet linen and kitchen linen: toilet linen and kitchen linen, of terry toweling or similar terry fabrics, of cotton towels: other. The general duty rate will be 9.3 percent ad valorem.

Due to the fact that the bed skirt, face panels of the duvet cover, comforter, sham, curtain, valance and the shell of the cushion may be constructed from a 50/50 or 50/25/25 blend of fibers, those items 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 blended fabrics 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. These products may be subject to U.S. Customs laboratory analysis at the time of importation, and if the fabric is other than the stated blend they may be reclassified by Customs at that time.

The duvet cover, comforter, pillow sham, bed skirt, curtain and valances fall within textile category designation 666. Although classified as a set, the sheets and pillowcases are subject to textile category numbers as if they were classified separately. The fitted and flat sheets fall within category designation 361. The pillowcases fall within textile category designation 360. The towels fall under textile category designation 363. The cushion falls under a subheading that is not assigned a textile category number. 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, comforter, sham, bed skirt, sheet set, cushion, towels and a curtain and valance set undergo processing operations in Canada and the United States which are countries provided for under the North American Free Trade Agreement. These products will be eligible for the NAFTA preference if they qualify to be marked as a good of Canada and if they are wholly obtained or produced in the NAFTA territories or 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, 6303, 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 6006, 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 heading 6303 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 6006, 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 6006, 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.

In addition to the above heading and subheading rules, there is a Chapter rule for Chapter 63. Chapter rule 1, General Note 12(t)63 states:

Chapter rule 1: For purposes of determining the origin of a good of this chapter, the rule applicable to that good shall only apply to the component that determines the tariff classification of the good and such component must satisfy the tariff change requirements set out in the rule for that good.

The foreign fabrics in the submitted duvet cover, pillow sham, bed skirt curtain panel and valance do not meet the tariff shift rule, however, we are able to disregard the foreign fabric (in the form of fabric or flat sheets) since the chapter rule directs that only the component that determines classification must meet the terms of the shift rule to be eligible for NAFTA preferential treatment. The jacquard fabric that was woven in the United States is the component that determined the classification for the duvet cover, pillow sham, bed skirt curtain panel and valance. Since the jacquard woven fabric is stated to be an originating material it does not have to meet the terms of the tariff shift rule. Therefore, the duvet cover, pillow sham, bed skirt curtain panel and valance would be eligible for NAFTA preferential treatment.

The submitted pillowcases, flat sheet, fitted sheet and comforter are made using pillowcases and sheets that were made in China. The instant towels are made using towels that were made in China. When the 100 percent cotton towels and the 100 percent cotton or 50/50 polyester and cotton sheets and pillowcases leave China, they are classified in heading 6302, HTSUSA. As heading 6302 is within the same chapter as the subject pillowcases, sheets and towels, the non-originating material from China does not undergo the requisite change in tariff classification. Accordingly, the pillowcases, sheets and towels are not eligible for the NAFTA preference.

The non-originating flat sheet used to make the back panel of the comforter and the corded trim used to finish the cushion undergo the requisite change in classification. The remaining components of the comforter and cushion are made from originating materials. The comforter and cushion are eligible for the NAFTA preference. The duvet cover, pillow sham, bed skirt, curtain panel, valance, comforter and cushion are entitled to the special “CA” duty rate of free under the NAFTA upon compliance with all applicable laws, regulations and agreements.

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.” As the fitted sheet is the only product that was wholly obtained or produced in a single country, that is, China, the country of origin of the fitted sheet is conferred in China. The duvet cover, comforter, bed skirt, sham, curtain panel, valance, towels, cushion, pillowcases and flat sheet 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 Except for goods of heading 6302 through 6304 provided for in paragraph (e)(2) of this section, 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 Except for goods of subheading 9404.90 provided for in paragraph (e)(2) of this section, 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.

Subheadings 6303.92, 6303.99, 6304.93, 6304.99 and 9404.90.85 are included in the paragraph (e)(2) exception to the above tariff shift rules. Paragraph (e)(2)(i) is not applicable as the fabrics comprising the bed skirt, curtain, valance, pillow sham and comforter are not dyed and printed. Paragraph (e)(2)(ii) states that “If the country of origin cannot be determined under (i) above, except for goods of HTSUS subheading 6117.10 that are knit to shape or consist of two or more component parts, the country of origin 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 bed skirt, curtain panel, valance, pillow sham and comforter are formed in more than one country, Section 102.21 (c)(2) is inapplicable for those items.

Subheadings 6302.31, 6302.32, 6302.60 and 9404.90.20 are not included in the paragraph (e)(2) exception to the above tariff shift rules. As the fabrics comprising the flat sheet, pillowcases, duvet cover and towels are formed in more than one country, Section 102.21(c)(2) is inapplicable for the those items. The cushion is made from a shell fabric and a loose fiberfill. As the fabric comprising the cushion was formed in a single country, that is, the United States, as per the terms of the tariff shift requirement, country of origin is conferred in the United States.

However, the NAFTA Preference Override set forth in 19 C.F.R. Section 102.19 is applicable to the subject merchandise. Specifically, Section 102.19(b) states:

If, under any provision of this part, the country of origin of a good which is originating within the meaning of § 181.1(q) of this chapter is determined to be the United States and that good has been exported from, and returned to, the United States after having been advanced in value or improved in condition in another NAFTA country, the country of origin of such good for Customs duty purposes is the last NAFTA country in which that good was advanced in value or improved in condition before its return to the United States.

Based on the facts presented, the cushion at issue is an originating good under NAFTA and has been determined under section 102.21(c)(2) to be a good of U.S. origin. Because the articles were returned to the U.S. after having been advanced in value or improved in condition in Canada by virtue of cutting and sewing into a finished cushion, the country of origin of the cushion for Customs duty purposes is Canada, pursuant to Section 102.19(b). Accordingly, the “CA” NAFTA rate will be applicable to the cushion.

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 pillowcases, flat sheet, towels, duvet cover, comforter, pillow sham, bed skirt, curtain and valance are not knit and headings 6302, 6303, 6304 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). The pillowcases, flat sheet and towels consist of fabric made in China and U.S. made fabric that is used as a decorative trimming. In fact, the pillowcases, flat sheet and towels were a finished product when exported from China. They were only subject to minor processing in Canada. The fabric making process of the cotton damask stripe fabric and the cotton terry toweling fabric constitute the most important manufacturing process. Accordingly, the fabric making process in China, where the fabrics for the subject pillowcases, flat sheet, and towels are formed, constitutes the most important manufacturing process and the country of origin of the pillowcases, flat sheet and towels is China.

The fabrics that make up the duvet cover, comforter, pillow sham, bed skirt, curtain and valance are sourced in more than one country. As no one fabric is more important than the other, a single country of origin determination cannot be made based on Section 102.21(c)(4).

Paragraph (c)(5) states that "Where the country of origin of a textile or apparel product cannot be determined under paragraph (c)(1), (2), (3) or (4) of this section, the country of origin of the good is the last country, territory or insular possession in which an important assembly or manufacturing process occurred". Accordingly, in the case of the subject duvet cover, comforter, pillow sham bed skirt curtain panel and valance, country of origin is conferred by the last country in which an important assembly or manufacturing process occurred, that is, Canada.

HOLDING:

The country of origin of the duvet cover, comforter, pillow sham, bed skirt, curtain and valance is Canada. The duvet cover, comforter, pillow sham, bed skirt, curtain and valance are entitled to the NAFTA “CA” duty rate of Free upon compliance with all applicable laws, regulations and agreements.

By virtue of the NAFTA override in 19 CFR 102.19(b), the country of origin of the cushion is Canada for duty purposes and it is entitled to the NAFTA “CA” special duty rate of Free. However, the country of origin of the cushion for marking purposes is the United States. Therefore, they are not subject to the marking requirements of 19 U.S.C. 1304.

The country of origin of the flat sheet, fitted sheet, pillowcases and towels is China. Based upon international textile trade agreements products of China are subject to quota and visa requirements.

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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