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NY J82692




April 10, 2003

CLA-2-RR:NC:TA:349 J82692

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 pillow sham, decorative toss pillow and a table runner; 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 102.19(a); NAFTA Preference Override; 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 pillow sham, decorative toss pillow and a table runner which will be imported into the United States.

FACTS:

The subject merchandise consists of a pillow sham, decorative toss pillow and a table runner. You submitted samples of the pillow and table runner. The outer shell of the pillow is made from a 50 percent cotton and 50 percent polyester jacquard woven fabric. It measures approximately 12 x 18 inches. The pillow is stuffed with a loose polyester fiberfill. A 10-millimeter braided cord is used to decorate the pillow. On the submitted sample the cord is used to form a fringe at the ends of the pillow. The table runner is made from the same jacquard woven fabric. It measures 12.5 x 18 inches and the ends are sewn to form a point. A 3.5-inch tassel is sewn to the point. The euro sized pillow sham is made from the same fabric as the pillow and runner. There is an overlapping flap closure or placket on the back and the edges are finished with the 10-millimeter braided cord.

The manufacturing operations for these items are as follows:

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

CANADA:
-polyester fiberfill is made.
-tassels and 10 mm. braided cord are formed. -jacquard fabric is cut to size and shape. -components are sewn and trimmed forming the euro pillow sham and table runner. -cut fabric is sewn and trimmed creating a pillow shell. -shell is stuffed with fiberfill and sewn closed. -pillow sham, table runner and pillow 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 table runner will be 6302.53.0030, Harmonized Tariff Schedule of the United States Annotated, (HTSUSA), which provides for bed linen, table linen, toilet linen and kitchen linen: other table linen: of man-made fibers other. The general rate of duty will be 11.4 percent ad valorem.

The applicable subheading for the pillow sham 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 9.4 percent ad valorem.

The applicable subheading for the pillow 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 rate of duty will be 6 percent ad valorem.

Due to the fact that the pillow sham, table runner and pillow 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 euro sham and table runner fall within textile category designation 666. The pillow 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 euro sham, table runner and pillow undergo processing operations in Canada which is a country 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, 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 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.

When the 50/50 polyester and cotton woven fabric for the sham, runner and pillow leaves China, it is 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, 6304 and subheading 9404.90, HTSUSA, it would initially appear that the non-originating material from China does not undergo the requisite change in tariff classification.

It is noted, however, that the Appendix to Part 181 of the Customs Regulations (19 CFR Part 181), which sets forth the NAFTA rules of origin regulations, specifies rules for determining whether certain non-originating materials undergo an applicable change in tariff classification when used in self-made goods. The Appendix to Part 181, Part II, Section 4 ("Originating Goods")(8), states:

For purposes of determining whether non-originating materials undergo an applicable change in tariff classification, a self-produced material may, at the choice of the producer of the good into which the self-produced material is incorporated, be considered as an originating material or non-originating material, as the case may be, used in the production of that good.

The fabric shells which are manufactured in Canada prior to the completed pillow are considered a “self-produced material.” The sham and runner are not formed with a “self-produced material” and therefore this rule is inapplicable for those items. On the basis of the foregoing, the producer of the pillow ("the good") has the option of identifying the pre-formed pillow shell ("the self-produced material") as non-originating materials. If this choice is made, the pillow shell (classifiable under subheading 6307.90, HTSUS) falls within a tariff provision that is not excepted by the tariff shift rule set forth in subdivision (t). Accordingly, the pillow shell would be deemed as undergoing the requisite change in tariff classification.

Pursuant to the analysis set forth above, the pillow qualifies as an originating good. Accordingly, it will be entitled to the special "CA" rate of duty if it qualifies to be marked as a good of Canada and provided that all other NAFTA requirements are met. The non-originating material used in the pillow sham and table runner does not undergo the requisite change in tariff classification. Accordingly, the pillow sham and table runner are 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.” 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 6302.53 and 6304.93 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). As the fabrics comprising the pillow sham and table runner are formed in a single country, that is, China, as per the terms of the tariff shift requirement, country of origin is conferred in China.

Subheading 9404.90.20 is not included in the paragraph (e)(2) exception to the above tariff shift rules. The pillow is made from a shell fabric and a loose fiberfill. As the fabric comprising the pillow was formed in a single country, that is, China, as per the terms of the tariff shift requirement, country of origin is conferred in China. However, the pillow qualifies as a NAFTA originating good. As stated in Section 102.19(a):

Except in the case of goods covered by paragraph (b) of this section, if a good which is originating within the meaning of §181.1(q) 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 (see §181.11 of this chapter) has been completed and signed for the good.

As the pillow qualifies as a NAFTA originating good, applying the terms of Section 102.19(a), the country of origin of the pillow is Canada.

HOLDING:

The country of origin of the pillow is Canada. The pillow is entitled to the NAFTA “CA” duty rate of Free upon compliance with all applicable laws, regulations and agreements.

The country of origin of the table runner and euro pillow sham is China. Based upon international textile trade agreements products of China falling in the above subheadings are not subject to quota or visa restrictions.

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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