CLA-2-RR:NC:TA:349 G89146
Ms. Beverly Finnen
Sweet Kyla Inc.
330 Trillium Drive
Kitchener, Ontario, Canada N2E 2K6
RE: Classification, status under the North American Free Trade Agreement (NAFTA) and country of origin determination for a comforter set; 19 CFR 102.21(c)(1); wholly obtained or produced in a single country; 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; de minimis; Article 509
Dear Ms. Finnen:
This is in reply to your letter dated April 6, 2001 requesting a classification, status under the NAFTA and country of origin determination for a comforter set which will be imported into the United States.
FACTS:
The subject merchandise, referred to as a four piece crib linen set, consists of a comforter, bumper pad, fitted sheet and a dust ruffle. A sample of Style 2011, “Savannah”, was submitted. The set is sized to fit an infant's crib. The face and back sides of the "Savannah" comforter are made from a 75 percent cotton and 25 percent polyester knit pile fabric. This pile fabric which you refer to as “beige chenille” features sheared terry ribs. A strip of cotton, polyester and jute woven plaid fabric is inserted in a seam between the top third and the rest of the face side. The fabric is in chief weight of cotton. This decorative trim has been sewn to create a 9-centimeter wide flap. The edge of the flap is finished with a woven strip of olive gingham fabric. The comforter is filled with a polyester batting fabric and quilted through all three layers. The matching bumper pad is made up from two sections measuring approximately 10 x 114 and 10 x 44 inches. The outer shell is made from both the cotton, polyester and jute plaid fabric and the 100 percent cotton yarn dyed olive gingham fabric. A piping cord is inserted in the seam between these two fabrics. The pad, which is stuffed with the polyester batting, features fabric tie strings used to affix it to the crib. The tie strings and the binding along the top edge are made from the olive gingham fabric. The fitted sheet is made from 100 percent cotton knit fabric. It is elasticized at the top and bottom. The dust ruffle consists of a 65 percent polyester and 35 percent cotton plain woven platform section and a ruffle or skirt made from both the cotton, polyester and jute plaid fabric and the olive gingham fabric. The skirt has a 12-inch drop. As requested the samples will be returned.
The comforter set will be packed for retail sale in a vinyl bag. The manufacturing operations for the comforter set are as follows:
ITALY:
-cotton, polyester and jute plaid fabric is woven.
-rolls of fabric are shipped to Canada.
TURKEY:
-cotton gingham fabric is woven.
-rolls of fabric are shipped to Canada.
VARIOUS COUNTRIES IN THE FAR EAST:
-65% polyester and 35% cotton fabric is woven.
-rolls of fabric are shipped to Canada.
CANADA:
-cotton and polyester pile fabric is knit.
-polyester batting fabric is made.
-cotton fabric is knit.
-the fabrics are cut, sewn, stuffed, quilted, etc., forming the various set components.
-comforter, bumper pad, fitted sheet and dust ruffle are packed for retail sale and shipped.
You have indicated that the plaid and gingham fabrics used on the comforter are less than 7 percent of the transaction value of the comforter in addition to being less than 7 percent of the total weight of the comforter.
ISSUE:
What are the classification, eligibility under NAFTA and country of origin of the subject merchandise?
CLASSIFICATION:
Classification of merchandise under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA) is in accordance with the General Rules of Interpretation (GRI's), taken in order. GRI 1 provides that classification shall be determined according to the terms of the headings and any relative section or chapter notes.
The comforter is classifiable in Heading 9404 as articles of bedding and similar furnishing that are stuffed or fitted. The fitted sheet is classifiable in Heading 6302 as bed linen and the dust ruffle is classifiable under the provision for curtain and bed valances in Heading 6303. The crib bumpers have been classified under Heading 6307 as other made up articles. Since classification of the submitted merchandise in a single heading cannot be determined by applying GRI 1, we must apply the other GRI's.
GRI 3 provides for goods that are, prima facie, classifiable in two or more headings. GRI 3(b) provides that goods put up in sets for retail sale shall be classified as if they consisted of the material or component which gives them their essential character. According to the Explanatory Notes, the official interpretation of the HTSUSA at the international level, “goods put up in sets for retail sale” refers to goods which:
(a) consist of at least two different articles which are, prima facie, classifiable in different headings;
(b) consist of products or articles put up together to meet a particular need or carry out a specific activity; and
(c) are put up in a manner suitable for sale directly to users without repacking.
The subject set meets the qualifications of “goods put up in sets for retail sale”. The components of the set consist of four different articles which are, prima facie, classifiable in different headings. They are put up together to carry out the specific activity of furnishing an infant's 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 set its essential character.
The applicable subheading for the “Savannah” comforter set will be 9404.90.8505, HTSUSA, which provides for 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: other: quilts, eiderdowns, comforters and similar articles… with outer shell of cotton. The general rate of duty will be 13.3 percent ad valorem.
The comforter and fitted sheet fall within textile category designation 362. The dust ruffle falls within textile category designation 369. The bumper pad is not currently assigned a textile category designation. 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 “Savannah” comforter set undergoes processing operations in Canada which is a country provided for under the North American Free Trade Agreement. The comforter set at issue will be eligible for the NAFTA preference if it qualifies to be marked as a good of Canada and if it is 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 heading 9404, HTSUSA, subdivision (t), Chapter 94, rule 7, 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.
In the case of the comforter, when the non-originating materials from Italy and Turkey enter Canada they are classifiable, depending on the fabric weight, in heading 5210 or 5211 and heading 5208 or 5209, HTSUSA. As fabrics of headings 5208, 5209, 5210 and 5211 are excepted from meeting the tariff change to subheading 9404.90, HTSUSA, the non-originating materials from Italy and Turkey do not undergo the requisite change in tariff classification. However, these non-originating fabrics account for less than 7 percent of the value of the comforter. In setting out the De Minimis rules for NAFTA, General Note 12(f) indicates that a good is to be considered originating if the value of all of the non-originating materials that do not undergo the change in tariff classification is not more than 7 percent of the transaction value of the good. Accordingly, the comforter is eligible for the NAFTA preference. Assuming the comforter qualifies to be marked as a good of Canada, the set is entitled to the special “CA” 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:
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.
Additionally, 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 classification of the subject comforter set, as per an essential character determination, is based on the comforter, 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.
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 fitted sheet was wholly obtained or produced in a single country, that is, Canada, country of origin of the sheet is conferred in Canada. The comforter, bumper pad and dust ruffle are not wholly obtained or produced in a single country, territory or insular possession, and therefore paragraph (c)(1) of Section 102.21 is inapplicable for those components.
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 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.
6307.90 The country of origin of a good classifiable under subheading 6307.90 is the country, territory, or insular possession in which the fabric comprising the good was formed by a fabric making process.
9404.90 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.
The comforter is made up from fabrics that were formed in Italy, Turkey and Canada. Since the fabrics comprising the comforter were formed in more than one country, Section 102.21(c)(2) would appear to be inapplicable. However, the fabrics from Italy and Turkey weigh less than 7 percent of the total weight of the comforter. According to Section 102.13, which sets out the De Minimis rule, foreign components that do not undergo the tariff shift specified in Section 102.21 are to be disregarded in determining the country of origin of the good if the total weight of those components is not more than 7 percent of the total weight of the good. The only remaining fabrics that make up the comforter were formed in Canada. As the fabrics comprising the comforter are formed in a single country, following the terms of the tariff shift requirement, the country of origin of the comforter is conferred in Canada.
The other two components of the set are made from two or more fabrics that are formed in different countries. As the fabrics comprising the dust ruffle and bumper pad are formed in more than one country, Section 102.21(c)(2) is inapplicable for the dust ruffle and bumper pad.
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 subject dust ruffle and bumper pad are not knit and heading 6303 and subheading 6307.90, 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). In the case of the subject bumper pad, the fabric making process of the outer shell constitutes the most important manufacturing process. The fabrics for the outer shell of the bumper pad are sourced in more than one country. The dust ruffle is also made from fabrics that were formed in different countries. 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 dust ruffle and the bumper pad, the country of origin is conferred by the last country in which an important assembly or manufacturing process occurred, that is, Canada. As a single country of origin for all of the components in the set has been determined to be Canada, the country of origin for the set is Canada.
HOLDING:
The “Savannah” comforter set is classified in subheading 9404.90.8505, HTSUSA, which provides for other quilts, eiderdowns, comforters and similar articles with an outer shell of cotton.
The country of origin of the comforter set is Canada. These products are not subject to quota or visa restrictions. The comforter set is entitled to the NAFTA “CA” special duty rate of Free upon compliance with all applicable laws, regulations and agreements.
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 212-637-7078.
Sincerely,
Robert B. Swierupski
Director,
National Commodity
Specialist Division