CLA-2-94:OT:RR:NC:TA:349
Mr. Nicholas D’Andrea
Delmar International Inc.
147-55 175th Street
Jamaica, NY 11434
RE: The tariff classification, status under the North American Free Trade Agreement (NAFTA) and country of origin determination for pillows, comforters, featherbeds and fiberbeds from Canada; 19 CFR 102.21(c)(2); tariff shift; 19 CFR 102.19(a); NAFTA Preference Override; Article 509
Dear Mr. D’Andrea:
In your letter dated April 24, 2009 you requested a ruling on the classification, country of origin and status under the NAFTA for pillows, comforters, featherbeds and fiberbeds from Canada. This request is made on behalf of Westex International (Canada) Ltd.
The merchandise consists of pillows, comforters, featherbeds and fiberbeds. Samples of the unstuffed shells were submitted. The outer shells of these items are made from 100 percent cotton woven fabric. The pillows, comforters and featherbeds will be filled with a down/feather blend while the fiber bed will be filled with polyester fibers. None of the samples contain any embroidery, lace, braid, edging, trimming, piping or appliqué work. All of the shells have one or more small unfinished openings along one side through which the down/feather blend or polyester fibers will be blown. The comforters have a box stitch construction. The feather beds and fiberbeds have a baffle box construction with interior baffles and 1.5 inch gusset or sidewall. The featherbeds and fiberbeds are used as mattress toppers.
The manufacturing operations for the pillows, comforters, featherbeds and fiberbeds are as follows:
CHINA:
-cotton fabric is woven and finished.
-fabric is cut and sewn to form the various shells.
-unstuffed shells and down/feather blend are shipped to Canada.
CANADA:
-polyester fibers are formed.
-pillow, comforter and featherbed shells are filled with down/feather blend.
-fiberbed shells are filled with polyester fibers.
-stuffed shells are sewn closed.
-pillows, comforters, featherbeds and fiberbeds are packaged and shipped.
The applicable subheading for the cotton pillows will be 9404.90.1000, Harmonized Tariff Schedule of the United States (HTSUS), 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: pillows, cushions and similar furnishings: of cotton. The general rate of duty will be 5.3 percent ad valorem.
The applicable subheading for the down/feather filled cotton comforters will be 9404.90.8505, HTSUS, 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: quilts, eiderdowns, comforters and similar articles… with outer shell of cotton. The general rate of duty will be 12.8 percent ad valorem.
The applicable subheading for the down/feather filled cotton featherbeds will be 9404.90.9505, HTSUS, 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: other… with outer shell of cotton. The general rate of duty will be 7.3 percent ad valorem.
In your letter you suggest that the polyester fiber filled fiberbeds should be classified under the same subheading as the down/feather filled featherbeds. The courts (Pillow Tex Corp. v. U.S. Slip-Op 97-146, affirmed in USCAFC Slip-Op 98-1227) determined that the essential character of a down-filled cotton comforter was the down filling rather than the cotton shell. Customs and Border Protection (CBP) applied that decision to featherbeds, concluding that the essential character of a feather-filled featherbed is also the feather filling. However, it is the belief of CBP that the outer shell provides the essential character in fiber filled articles of bedding.
The applicable subheading for the polyester fiber filled cotton fiberbeds will be 9404.90.8040, HTSUS, 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 appliqué work… other. The general rate of duty will be 4.4 percent ad valorem.
Duty rates are provided for your convenience and are subject to change. The text of the most recent HTSUS and the accompanying duty rates are provided on World Wide Web at http://www.usitc.gov/tata/hts/.
General Note 12(b), HTSUS, sets forth the criteria for determining whether a good is originating under the NAFTA. General Note 12(b), HTSUS, (19 U.S.C. § 1202) states, in pertinent part, that
For the purposes of this note, goods imported into the customs territory of the United States are eligible for the tariff treatment and quantitative limitations set forth in the tariff schedule as “goods originating in the territory of a NAFTA party” only if--
(i) they are goods wholly obtained or produced entirely in the territory of Canada, Mexico and/or the United States; or
(ii) they have been transformed in the territory of Canada, Mexico and/or the United States so that--
(A) except as provided in subdivision (f) of this note, each of the non-originating materials used in the production of such goods undergoes a change in tariff classification described in subdivisions (r), (s) and (t) of this note or the rules set forth therein, or
(B) the goods otherwise satisfy the applicable requirements of subdivisions (r), (s) and (t) where no change in tariff classification is required, and the goods satisfy all other requirements of this note;
The pillows, comforters, featherbeds and fiberbeds undergo processing operations in Canada. Canada 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, HTSUS. For heading 9404, HTSUS, 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.
When the non-originating pillow shells, comforter shells, featherbed shells and fiberbed shells from China enter Canada, they are classified in heading 6307, HTSUS. The down/feather blend is classified in heading 0505, HTSUS. As headings 0505 and 6307, HTSUS are not excepted by subdivision (t), the merchandise undergoes the requisite change in tariff classification and the pillows, comforters, featherbeds and fiberbeds qualify for NAFTA preference.
Pursuant to the analysis set forth above, the pillows, comforters, featherbeds and fiberbeds qualify as an originating good. Accordingly, they will be entitled to the special "CA" rate of duty of Free if they qualify to be marked as a good of Canada and provided that all other NAFTA requirements are met.
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 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
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 9404.90.10 and 9404.90.80 are not included in the paragraph (e)(2) exception to the above tariff shift rule. Subheadings 9404.90.85 and 9404.90.95 are included in paragraph (e)(2) however, goods classified in those subheadings as of cotton or which consist of fiber blends containing 16 percent or more by weight cotton are excepted from paragraph (e)(2). The pillows, comforters, featherbeds and fiberbeds are made from a fabric that was formed in a single country. As the fabric comprising the pillows, comforters, featherbeds and fiberbeds is 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 pillows, comforters, featherbeds and fiberbeds qualify 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 pillows, comforters, featherbeds and fiberbeds qualify as a NAFTA originating good, applying the terms of Section 102.19(a), the country of origin of the pillows, comforters, featherbeds and fiberbeds is Canada. The pillows, comforters, featherbeds and fiberbeds will be entitled to the special "CA" duty rate of Free, provided that all other requirements of the NAFTA are met.
This ruling is being issued under the provisions of Part 181 of the Customs Regulations (19 C.F.R. 181).
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
National Commodity Specialist Division