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HQ 966839




January 26, 2004

CLA-2: RR:CR:TE: 966839 BTB

CATEGORY: CLASSIFICATION

TARIFF NO.: 9404.90.8040

Ms. Rheci Abustan
CHF Industries, Inc.
One Park Avenue
New York, NY 10016

RE: Classification of decorative pillow sham

Dear Ms. Abustan:

This is in response to your November 21, 2003 letter to the National Commodity Specialist Division, New York, NY requesting the classification of a decorative pillow sham (“sham”) from India. You also inquired whether the sham was subject to visa or quota requirements and whether the sham was eligible for duty-free treatment under the Generalized System of Preferences (“GSP”). You submitted a sample along with your letter and asked that it be returned to you. The matter was referred to this office for a response. The sample is being returned to you under separate cover.

FACTS:

In your letter, you state the sham is made of 100% cotton, made in India, will be packaged by itself but sold to match a coordinating duvet, and will be sold as a decorative cover and not as linens.

The sample submitted is a decorative pillow sham. It is entirely black. It is made from a quilted face panel and a two piece back panel. The face panel consists of two layers of cotton woven fabric with a layer of polyester batting between them. Quilt stitching extends through all three layers. An additional 3/8-inch wide strip of fabric has been sewn to the face panel. The two-piece cotton fabric back panel is sewn to the face panel and creates an overlapping flap closure. The pillow sham measures approximately 20 x 36 inches. ISSUE:

What is the tariff classification of the sham under the HTSUSA?

LAW AND ANALYSIS:

Classification under the HTSUSA is made in accordance with the General Rules of Interpretation (GRI). GRI 1 provides, in part, that classification decisions are to be "determined according to the terms of the headings and any relative section or chapter notes." In the event that goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRI may then be applied. The Harmonized Commodity Description and Coding System Explanatory Notes (EN) constitute the official interpretation of the Harmonized System at the international level (for the 4 digit headings and the 6 digit subheadings) and facilitate classification under the HTSUSA by offering guidance in understanding the scope of the headings and GRI. While neither legally binding nor dispositive of classification issues, the EN provide commentary on the scope of each heading of the HTSUSA and are generally indicative of the proper interpretation of the headings. See T.D. 89-80, 54 Fed. Reg. 35127-28 (Aug. 23, 1989).

Subheading 9404.90.8040, HTSUSA, 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: Other.”

In previous rulings, we evaluated decorative quilted pillow shams very similar to the sham submitted. For example, in NY H84583, dated August 23, 2001, we ruled that a quilted pillow sham measuring approximately 20 x 36 inches, made of 100 percent cotton fabric was classifiable in subheading 9404.90.8040, HTSUSA. The face panel of the sham featured a patchwork design made up of squares in a variety of colors and patterns. In addition, the patchwork included larger squares and strips of fabric that contained tufting in the form of flowers and stripes. The back of the sham was plain and featured an overlapping flap. The sham was sewn to create a flange or picture frame effect. Also, in NY H89259, dated March 28, 2002, we ruled that 26 x 26 inch and 20 x 27 inch quilted pillow shams made of 100 percent cotton yarn dyed herringbone fabric were classifiable in subheading 9404.90.8040, HTSUSA. The face panels of those shams were made of two layers of woven fabric, stuffed with a layer of cotton batting. Quilt stitching extended through all three layers. The back panels of the shams had an overlapping flap closure and the shams’ edges were finished with a layer of fabric binding. Finally, in NY H83787, dated August 6, 2001, we ruled that 20 x 26 inch and 26 x 26 inch pillow shams were classifiable in subheading 9404.90.8040, HTSUSA. The outer shells of those shams were made of 100 percent cotton woven fabric and were stuffed with cotton batting. The face panels of those shams featured a patchwork pattern and their back panels had overlapping flap-tie closures. For additional rulings involving similar merchandise classified in subheading 9404.90.8040, HTSUSA, see NY H83348 (dated July 5, 2001), NY I81570 (dated June 3, 2003), and NY H82918 (dated July 16, 2001).

We find the instant pillow sham substantially similar to shams previously evaluated and classified in subheading 9404.90.8040, HTSUSA, and find the instant sham to be classifiable in the same provision.

HOLDING:

The applicable subheading for the subject sham is 9404.90.8040, 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: Other.” The sham falls within textile category designation 369. Based upon international textile trade agreements, merchandise classified under 9404.90.8040, HTSUSA, from India is not subject to quota or visa restrictions. Furthermore, 9404.90.8040, HTSUSA, is not a GSP-eligible provision. The rate of duty will be 4.4 percent ad valorem under the 2004 HTSUSA.

Sincerely,

Myles B. Harmon, Director

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