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NY D83984




November 12, 1998

CLA-2-RR:NC:TA:349 D83984

CATEGORY: CLASSIFICATION

Mr. Edward N. Jordan
Expeditors International of Washington, Inc. 601 North Nash Street
El Segundo, CA 90245

RE: Classification, status under the North American Free Trade Agreement (NAFTA) and country of origin determination for an infant's comforter set; 19 CFR 102.21(c)(2); tariff shift; 19 CFR 12.130(c); Article 509

Dear Mr. Jordan:

This is in reply to your letter dated October 23, 1998, on behalf of Noel Joanna, Inc., requesting a classification, status under the NAFTA and country of origin determination for infant's comforter sets which will be imported into the United States.

FACTS:

The subject merchandise, referred to as the "Where's Paddington" 3-piece bedding set, consists of a comforter, fitted crib sheet, and a crib bumper. All of the items are made from 50 percent cotton and 50 percent polyester woven fabrics. The quilted comforter which measures approximately 33 x 42 inches features a printed "Paddington Bear" design. The nine inch high crib bumper and the comforter are filled with a polyester batting. The bumper is also printed with a "Paddington Bear design. The fitted crib sheet has elasticized corners. The three pieces are packed for retail sale in a clear zippered plastic bag. The manufacturing operations for the infant's comforter set are as follows:

UNITED STATES
- yarns are spun from domestic fibers;
- 50/50 fabric is woven and printed;
- polyester batting is formed.

MEXICO
- fabrics are cut;
- comforter, bumper and sheet are assembled, stuffed and sewn;
- crib set is packed.

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. The fitted sheet is classifiable in Heading 6302 and the bumper is classifiable in Heading 6307. 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 submitted set meets the qualifications of "goods put up in sets for retail sale". The components of the set consist of three 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 this set its essential character. Therefore this four piece infant's set is classifiable in Heading 9404.

As the subject comforter is composed of a mixture of textile materials, that is, a woven outer shell fabric consisting of a blend of 50 percent cotton and 50 percent polyester, and a textile fiberfill, we look to Additional U.S. Rule of Interpretation 1(d), which states:
the principles of Section XI regarding mixtures of two or more textile materials shall apply to the classification of goods in any provision in which a textile material is named.

Subheading Note 2 to Section XI, HTSUSA, states:

(A) Products of chapters 56 to 63 containing two or more textile materials are to be regarded as consisting wholly of that textile material which would be selected under note 2 to this section for the classification of a product of chapters 50 to 55 consisting of the same textile materials.

(B) For the application of this rule:

(a) Where appropriate, only the part which determines the classification under general interpretive rule 3 shall be taken into account;

Note 2 to section XI, HTSUSA, states:

(A) Goods classifiable in Chapters 50 to 55 or in heading 5809 or 5902 and of a mixture of two or more textile materials are to be classified as if consisting wholly of that one textile material which predominates by weight over each other single textile material.

When no one textile material predominates by weight, the goods are to be classified as if consisting wholly of that one textile material which is covered by the heading which occurs last in numerical order among those which equally merit consideration.

In the case of the subject merchandise, for purposes of classification, the printed outer shell fabric is the component that provides the essential character to the comforter. The shell fabric is composed of a blend of 50 percent cotton and 50 percent polyester fibers and, as per the above referenced notes, no one textile material predominates by weight, the comforter is classified based on the heading which occurs last in numerical order among those which merit consideration.

The applicable subheading for the infant's comforter set will be 9404.90.8522, Harmonized Tariff Schedule of the United States Annotated (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: quilts, eiderdowns, comforters and similar articles... with outer shell of man-made fibers. The rate of duty will be 13.8 percent ad valorem.

NAFTA ELIGIBILITY:

The subject comforter set undergoes processing operations in the United States and Mexico which are countries provided for under the North American Free Trade Agreement (NAFTA). General Note 12, HTSUSA, incorporates Article 401 of the North American Free Trade Agreement (NAFTA) into the HTSUSA. Note 12(a) provides, in pertinent part:

(ii) Goods that originate in the territory of a NAFTA party under subdivision (b) of this note and that qualify to be marked as goods of Mexico under the terms of the marking rules... and are entered under a subheading for which a rate of duty appears in the "Special" subcolumn followed by the symbol "MX" in parentheses, are eligible for such duty rate... .

Accordingly, the comforter set at issue will be eligible for the "Special" "MX" rate of duty provided they are NAFTA "originating" goods under General Note 12(b), HTSUSA, and they qualify to be marked as goods of Mexico. Note 12(b) provides in pertinent part:

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; or

(iii) they are goods produced entirely in the territory of Canada, Mexico and/or the United States exclusively from originating materials; or

As the subject comforter set is constructed in Mexico of materials wholly obtained or produced in the territory of the United States (a NAFTA signatory), it meets the criteria set out in General Note 12(b)(i). Accordingly, the comforter set qualifies as a good originating in the territory of a NAFTA party. Assuming that the comforter set qualifies to be marked as a good of Mexico, it is entitled to the special "MX" duty rate, 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.

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 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.

As the fabrics comprising the comforter set were formed by a fabric-making process in a single country, that is, the United States, as per the terms of the tariff shift requirement, country of origin is conferred in the United States.

However, there is an exception to products from the United States that are sent abroad for processing. Section 12.130(c), Customs Regulations, provides that any product of the United States which is returned after having been advanced in value or improved in condition abroad, or assembled abroad, shall be a foreign article.

Section 12.130 which remains in effect was originally intended to be used to determine the country of origin of textiles and textile products for quota/visa requirements. In T.D. 90-17, issued February 23, 1990, Customs announced a change in practice and position. This change resulted in Customs using Section 12.130 for quota, duty, and marking purposes when making country of origin determinations for textile goods. Therefore, in accordance with T.D. 90-17 and Section 12.130(c), the country of origin of the subject comforter set is Mexico, for quota, marking, and duty purposes.

HOLDING:

The subject infant's comforter set is classified in subheading 9404.90.8522, HTSUSA, which provides for other quilts, eiderdowns, comforters and similar furnishings, with an outer shell of man-made fibers.

The country of origin of the comforter set is Mexico. It will be entitled to the NAFTA "MX" special duty rate of 2.4 percent ad valorem 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 212-466-5854.

Sincerely,

Robert B. Swierupski
Director,

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