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NY J88006




August 21, 2003

CLA-2-RR:NC:TA:349 J88006

CATEGORY: CLASSIFICATION

Mr. Floyd Sirico
Rogers & Brown Custom Brokers, Inc.
P.O. Box 20160
Charleston, SC 29413-0160

RE: Classification, status under the North American Free Trade Agreement (NAFTA) and country of origin determination for a comforter; 19 CFR 102.21(c)(4); most important assembly or manufacturing process; 19 CFR 102.19(a); NAFTA Preference Override; Article 509

Dear Mr. Sirico:

This is in reply to your letter dated August 8, 2003, requesting a classification, status under the NAFTA and country of origin determination for a comforter which will be imported into the United States.

FACTS:

The subject merchandise consists of a comforter. A sample was not submitted. The outer shell of the comforter will be made from a 100 percent cotton woven flannel fabric. It will be stuffed with a polyester batting fabric and quilt stitching will extend through all three layers. The comforter will have either a printed fabric on both sides or printed fabric on one side and a solid color fabric on the other. You have indicated that the comforter does not contain any embroidery, lace, braid, edging, trimming, piping over 6.35 mm. or applique work. The manufacturing operations for the comforter are as follows:

PAKISTAN:
-cotton fabric is woven.
-fabric is printed or dyed and napped.
-fabric is cut to size.
-fabrics are sewn together on three sides creating a comforter shell. -comforter shell is shipped to Mexico.

MEXICO:
-polyester batting fabric is formed.
-batting is cut to size and stuffed into the comforter shell. -comforter is sewn closed and quilted.
-comforter is packaged in a zippered vinyl bag and shipped.

ISSUE:

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

CLASSIFICATION:

The applicable subheading for the comforter will be 9404.90.8020, Harmonized Tariff Schedule of the United States Annotated (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: of cotton, not containing any embroidery, lace, braid, edging, trimming, piping exceeding 6.35 mm or applique work quilts, eiderdowns, comforters and similar articles. The general rate of duty will be 4.5 percent ad valorem.

The comforter falls within textile category designation 362. 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 Textile Status Report for Absolute Quotas, which is available at our Web site at www.cbp.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 undergoes processing operations in Mexico which is a country provided for under the North American Free Trade Agreement. This product will be eligible for the NAFTA preference if it qualifies to be marked as a good of Mexico and if it is wholly obtained or produced in the NAFTA territories or transformed in Mexico so that the non-originating material undergoes a change in tariff classification described in subdivision (t) to General Note 12, HTSUSA. For heading 9404, HTSUSA, the appropriate subdivision (t) rule states that:

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 comforter is made from originating and non-originating materials. The polyester batting fabric was made in the NAFTA territories. When the non-originating comforter shell from Pakistan enters Mexico, it is classified in heading 6307, HTSUSA. As heading 6307, HTSUSA is not excepted by subdivision (t), the merchandise undergoes the requisite change in tariff classification and the comforter qualifies for NAFTA preference. Assuming the comforter qualifies to be marked as a good of Mexico, it is entitled to the special "MX" duty rate of Free, provided that a Certificate of Origin is completed and submitted in accordance with 19 CFR 181.11.

COUNTRY OF ORIGIN - LAW AND ANALYSIS:

Section 334 of the Uruguay Round Agreements Act (codified at 19 U.S.C. 3592), enacted on December 8, 1994, provided rules of origin for textiles and apparel entered, or withdrawn from warehouse for consumption, on and after July 1, 1996. Section 102.21, Customs Regulations (19 C.F.R. 102.21), published September 5, 1995, in the Federal Register, implements Section 334 (60 FR 46188). Section 334 of the URAA was amended by section 405 of the Trade and Development Act of 2000, enacted on May 18, 2000, and accordingly, section 102.21 was amended (68 Fed. Reg. 8711). Thus, the country of origin of a textile or apparel product shall be determined by the 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 was 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

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.

Subheading 9404.90.80 is not included in the paragraph (e)(2) exception to the above tariff shift rules. The comforter is made from a shell fabric and a batting fabric. As the fabrics comprising the comforter 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 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 comforter, the fabric making process of the outer shell constitutes the most important manufacturing process. Accordingly, the fabric making process in Pakistan, where the fabric for the outer shell is formed, constitutes the most important manufacturing process and the country of origin for the comforter is Pakistan.

However, the comforter 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 comforter qualifies as a NAFTA originating good, applying the terms of Section 102.19(a), the country of origin of the comforter is Mexico.

HOLDING:

The country of origin of the comforter is Mexico. The comforter is entitled to the NAFTA “MX” duty rate of Free upon compliance with all applicable laws, regulations and agreements. The comforter is not subject to quota or visa restrictions.

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.

This ruling letter is binding only as to the party to whom it is issued and may be relied on only by that party.

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.

Sincerely,

Robert B. Swierupski
Director,

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