Before Rich, Plager, and Rader, Circuit Judges.
The opinion of the court was delivered by: Plager, Circuit Judge.
Appealed from: United States Court of International Trade Judge Evan J. Wallach
Pillowtex Corporation ("Pillowtex") appeals from the judgment *fn1 of the United States Court of International Trade. That court sustained the classification by the United States Customs Service ("Customs") of Pillowtex's cotton-covered down comforters under subheading 9404.90.90 of the Harmonized Tariff Schedule of the United States *fn2 ("HTSUS"). Because we hold that the Court of International Trade did not erroneously classify the subject merchandise, we affirm.
The merchandise at issue is comforters with 100% cotton outer shells that are stuffed with white duck down. The outer shells of the comforters do not have any detail work such as embroidery.
Heading 9404 of the HTSUS provides in pertinent part:
"9404 Mattress supports; articles of bedding and similar furnishings (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:
"9404.90.80 Other: Of cotton, not containing any embroidery, lace, braid, edging, trimming, piping exceeding 6.35 mm or applique work. 9404.90.90 Other."
Under subheadings 9404.90.80 and 9404.90.90 are statistical suffixes that contain the following language: "Quilts, eiderdowns, comforters and similar articles: . . . ." In addition, following that language in the statistical suffix of subheading 9404.90.90 is the phrase: "With outer shell of cotton."
In a final interpretive rule, *fn3 Customs classified down comforters with 100% cotton shells under subheading 9404.90.90, which provided for a duty at a rate of 14.5% ad valorem. In its ruling, Customs reasoned that its prior classification of such down comforters under subheading 9404.90.80, which carried a duty of 5% ad valorem, was erroneous because the essential character of the comforters is the down filling, not the cotton outer shell.
Appellant Pillowtex challenged the new classification by Customs in an action before the Court of International Trade, arguing that its down comforters should be classified under subheading 9404.90.80 rather than 9404.90.90.
Under several separate lines of reasoning, the Court of International Trade sustained Customs's classification of Pillowtex's comforters under subheading 9404.90.90.
The Court of International Trade first examined the common and commercial usage of the phrases "comforter of cotton" and "cotton comforter." The trial court found that testimony established that those phrases describe comforters stuffed with cotton. In addition, the trial court found that the term "of cotton," when used to describe a comforter, does not include in common or commercial parlance a down-filled comforter. Deciding that the subject merchandise was not within the common meaning of the phrase "comforter of cotton," the trial court rejected Pillowtex's argument that its down comforters fall under the "of cotton" subheading, HTSUS 9404.90.80.
The trial court next examined the wording of the substantive subheadings under HTSUS 9404. The trial court reasoned that the subject comforter could only be prima facie classifiable under subheading 9404.90.90, the final basket clause in heading 9404, because that subheading, according to the trial court, necessarily includes merchandise ...