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NY J82690




April 17, 2003

CLA-2-RR:NC:TA:349 J82690

CATEGORY: CLASSIFICATION

Mr. Oliver Altiparmakyan
Jobson & Sons Ltd.
5925 Tomken Road, Unit 9
Mississauga, Ontario
Canada L4W 4L8

RE: Classification, status under the North American Free Trade Agreement (NAFTA) and country of origin determination for a comforter ensemble and a duvet cover ensemble; General Note 12; Appendix to Part 181, Part II, Section 4(8); Self Produced Materials; 19 CFR 102.21(c)(2); tariff shift; 19 CFR 102.21(c)(5); last country where an important assembly or manufacturing process occurred; 19 CFR 102.21(d); sets; Article 509

Dear Mr. Altiparmakyan:

This is in reply to your letter dated March 14, 2003, requesting a classification, status under the NAFTA and country of origin determination for a comforter ensemble and a duvet cover ensemble which will be imported into the United States.

FACTS:

The subject merchandise consists of a comforter ensemble and a duvet cover ensemble. The comforter ensemble consists of a comforter, bedskirt and two pillow shams. The duvet cover ensemble consists of a duvet cover, bed skirt and two pillow shams. You submitted samples of the pillow sham, bed skirt and duvet cover. The shams and bed skirt are the same for both sets. The top or face side of the outer shell of the comforter is made from a 50 percent cotton and 50 percent polyester jacquard woven fabric. The other side of the outer shell is made from a 50 percent cotton and 50 percent polyester percale fabric. The comforter will be stuffed with a polyester batting fabric and quilted through all three layers. A 10-millimeter braided cord is inserted in the edge seam on three sides. The duvet cover is made from two fabrics. The top or face is made from the 50 percent cotton and 50 percent polyester jacquard woven fabric. The back is made from the 50 percent cotton and 50 percent polyester percale fabric. It has a zippered opening along one end. Three sides are finished with the 10-millimeter braided cord.

The skirt portion of the bed skirt is made from the 50 percent cotton and 50 percent polyester jacquard woven fabric while the platform section is made from a 50 percent cotton and 50 percent polyester sheeting fabric. The box pleated skirt has a 15-inch drop. The standard sized pillow shams are made from the same 50 percent cotton and 50 percent polyester jacquard woven fabric. A quilted fabric made from a polyester batting fabric and a spunbond polyester nonwoven fabric is inserted behind the face side of the shams. There is an overlapping flap closure or placket on the back and the edges are finished with the 10-millimeter braided cord. The ensembles are packed together for retail sale. The manufacturing operations for these items are as follows:

CHINA:
-50 cotton/50 polyester jacquard fabric is woven. -fabric is shipped to Canada.

ISRAEL:
-50 cotton/50 polyester percale fabric is woven. -fabric is shipped to Canada.

UNITED STATES:
-50 cotton/50 polyester sheeting fabric is woven. -fabric is shipped to Canada.

CANADA:
-polyester batting fabrics (two different weights/thickness) are formed. -10 mm. braided cord is made.
-spunbond polyester nonwoven is formed.
-thin batting and spunbond fabrics are quilted together. -jacquard, sheeting, thicker batting, percale and quilted fabrics are cut to size and shape. -jacquard fabric and percale fabric are sewn and trimmed creating a comforter shell. -shell is stuffed with batting fabric, sewn closed and quilted. -other components are sewn, stuffed and trimmed forming the pillow shams, bed skirts and duvet cover.
-comforter, bed skirt and pillow shams are packed and shipped. -duvet cover, bed skirt and pillow shams are packed and shipped.

ISSUE:

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

CLASSIFICATION:

The comforter ensemble and the duvet cover ensemble meet the qualifications of “goods put up in sets for retail sale.” The components of the ensembles 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 comforter ensemble its essential character and that the duvet cover is the component that gives that ensemble its essential character.

Due to the fact that these items are made 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 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 applicable subheading for the duvet cover ensemble 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 15.1 percent ad valorem.

The applicable subheading for the comforter ensemble 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 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 percent ad valorem.

Although classified as sets, the individual components of the ensembles are subject to textile category numbers as if they were classified separately. All of the components in the comforter and duvet cover ensembles 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 comforter ensemble and the duvet cover ensemble 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 materials undergo a change in tariff classification described in subdivision (t) to General Note 12, HTSUSA. All of the components of the set, not just the item that imparts the essential character to the set, must meet the terms of General Note 12(b). For headings 6302 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 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 50/50 polyester and cotton woven fabrics for the shams, bed skirts, comforter and duvet cover leave China and Israel, 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 heading 6302 and subheading 9404.90, HTSUSA, the non-originating materials from China and Israel do not undergo the requisite change in tariff classification. If the producer of the comforter ensemble, following the “self-produced materials” rule set forth in the Appendix to Part 181 of the Customs Regulations (19 CFR Part 181), were to take the option of identifying the components of the set (comforter shell of heading 6307, bed skirt of heading 6303 and padded sham of heading 9404) as non-originating “self-produced materials,” the comforter shell and bed skirt would undergo the change in tariff classification. However, the padded sham would not undergo the requisite change in tariff classification as it is classifiable within Chapter 94. Accordingly, as all of the components of the set do not meet the subdivision (t) rule to General Note 12, the comforter ensemble is not eligible for the NAFTA preference.

If the producer of the duvet cover ensemble, again following the “self-produced materials” rule 19 CFR Part 181), were to take the option of identifying the components of the set (duvet cover of heading 6302, bed skirt of heading 6303 and padded sham of heading 9404) as non-originating “self-produced materials,” the padded sham would undergo the change in tariff classification. However, duvet cover and bed skirt would not undergo the requisite change in tariff classification as they are classifiable within Chapter 63. Accordingly, as all of the components of the set do not meet the subdivision (t) rule to General Note 12, the duvet cover ensemble 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.

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 classifications of the subject comforter and duvet cover ensembles, as per an essential character determination, are based on the comforter and duvet cover, 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.

We also note that the 50/50 percale fabric used as the back of the comforter and the duvet cover was made in Israel. Section 102.21(a) specifically states that the rules in Section 102.21 shall not apply "for purposes of determining whether goods originate in Israel or are the growth, product, or manufacture of Israel." The rules of origin in Section 12.130 are to be used to make that determination. The blended percale fabric was woven and finished in Israel and shipped to Canada where it was cut and assembled with other fabrics into the comforter and duvet cover. Israel can not be the country of origin of the comforter or the duvet cover because the fabric was substantially transformed in Canada. As Israel does not confer origin pursuant to Section 12.130, we then apply the rules in Section 102.21 to determine the country of origin.

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 subject merchandise is not wholly obtained or produced in a single country, territory or insular possession, 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 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, 9404.90.85 and 9404.90.95 are included in paragraph (e)(2) however, goods classified in those subheadings which consist of fiber blends containing 16 percent or more by weight cotton are excepted from paragraph (e)(2). Subheading 6302.32 is not included in the paragraph (e)(2) exception to the above tariff shift rules. As the fabrics comprising the comforter, duvet cover, bed skirts and pillow shams are formed in more than one country, Section 102.21(c)(2) is inapplicable.

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 comforter, duvet cover, bed skirts and pillow shams are not knit and subheading 9404.90 and headings 6302 and 6303, 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 fabrics that make up the comforter, duvet cover, bed skirts and pillow shams 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 comforter, duvet cover, bed skirts and pillow shams, 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 comforter ensemble and the duvet cover ensemble is Canada. The comforter ensemble and the duvet cover ensemble are not eligible for the NAFTA preferential rate.

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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