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HQ 966898




January 22, 2004

CLA-2: RR:CR: TE: 966898 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 quilt, and will be sold as a decorative cover and not as linens.

The sample submitted is a decorative pillow sham. It is made from a quilted face panel and a quilted back panel. The face panel is light yellow and the back panel is gray. The panels consist of two layers of cotton woven fabric with a layer of polyester batting fabric between them. Quilt stitching extends through all three layers. The two panels are sewn together along three sides, leaving the fourth open to allow insertion of a pillow. An additional piece of fabric is sewn on the back panel at the inside of the opening, creating an overlapping flap closure. Self fabric ties are also used to secure the opening. The pillow sham measures approximately 26 x 26 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 have evaluated decorative pillow shams almost identical to the sham submitted. For example, in NY H89259, dated March 28, 2002, we ruled that a 26 x 26 inch pillow sham made of 100 percent cotton yarn dyed herringbone fabric was classifiable in subheading 9404.90.8040, HTSUSA. The face panel of that sham was made of two layers of woven fabric, stuffed with a layer of cotton batting. Quilt stitching extended through all three layers. The back panel of the sham had an overlapping flap closure and the sham’s edges were finished with a layer of fabric binding. In NY I81570, dated June 3, 2002, we ruled that a 26.5 x 27 inch pillow sham was classifiable in subheading 9404.90.8040, HTSUSA. The outer shell of that sham was made from 100 percent cotton woven fabric, featured a patchwork design, and was stuffed with a layer of polyester filler. The back panel of that sham had an overlapping flap with tie string closures.

We find the instant pillow sham nearly identical to the 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 4.5 percent ad valorem.

Sincerely,

Myles B. Harmon, Director

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