CLA-2 RR:TC:TE 960337 jb
Carolann Nighan
Carolann Nighan Designs
33 Highland Drive
Marcellus, NY 13108-1129
RE: Country of origin determination for decorative pillows, 19
CFR 102.21(c)(5); last country in which an important assembly
occurs
Dear Ms. Nighan:
This is in reply to your letter dated March 20, 1997,
requesting a country of origin determination for certain
decorative pillows. Samples were submitted to this office for
examination and will be returned under separate cover.
FACTS:
The submitted merchandise, three decorative pillows, consist
of an enclosure and an insert. You state that the covers
("enclosures") for these pillow are made of 100 percent linen,
and the inserts are made of 100 percent polyester fibers with 100
percent cotton covers. Additionally, the pillows feature plaid
decorations made of 100 percent cotton, tassel trim made of 44
percent acetate, 42 percent rayon and 14 percent polyester,
cording made of 53 percent cotton, 22 percent acetate, 17 percent
polyester and 8 percent rayon, and gimp made of 44 percent
acetate, 33 percent rayon and 23 percent polyester.
One pillow measures 19 inches square and features a silk-screened design on the front linen fabric and pieces of what you
refer to as "secondary fabric" and trimmings applied to the
linen. The back of the pillow is also made of linen with buttons
covered in the "secondary fabric".
The remaining pillows measure 11 inches by 17 inches and
feature a nine inch piece of linen fabric on the front of the
pillow with a silk-screened design, and four inches of "secondary
fabric" on either side. Trimmings are also applied on both sides
of the outer edges of the pillow and the "secondary fabric". The
back of the pillow is also made of linen with buttons covered in
the "secondary fabric".
You state that the "secondary fabrics" and the trimmings
account for more than seven percent of the total weight of the
subject merchandise.
The linen for the subject pillow covers is made in Belgium,
and what you refer to as "secondary fabric" as well as the
trimmings and the inserts are made in the United States.
ISSUE:
1. What is the country of origin of the submitted
merchandise?
2. What is the proper marking of the submitted merchandise?
LAW AND ANALYSIS:
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 1 requires that
classification be determined according to the terms of the
headings and any relative section or chapter notes. Where goods
cannot be classified solely on the basis of GRI 1, the remaining
GRI will be applied, in the order of their appearance.
The articles at issue are made up of different components-
pillow covers, classifiable in heading 6304, HTSUS, and small
pillow inserts made up of polyester with cotton covers,
classifiable in heading 9404, HTSUS. As the articles are prima
facie classifiable under different HTSUS headings, they cannot be
classified pursuant to GRI 1. GRI 3 is applicable in this case
and states, in pertinent part:
When by application of rule 2(b) or for any other reason,
goods are, prima facie, classifiable under two or more
headings classification shall be effected as follows:
(b) Mixtures, composite goods consisting of different
materials or made up of different components, and
goods put up for retail sale, which cannot be
classified by reference to 3(a), shall be
classified as if they consisted of the material or
component which gives them their essential
character, insofar as this criterion is
applicable.
The Explanatory Notes to the Harmonized Commodity
Description and Coding System (EN) for GRI 3(b) in defining
"composite goods made up of different components" state:
XI. ...not only those in which the components are attached
to each other to form a practically inseparable whole
but also those with separable components, provided
these components are adapted one to the other and are
mutually complementary and that together they form a
whole which would not normally be offered for sale in
separate parts.
The articles at issue are separable components which meet
the definition of composite goods. Given the shape and sizing of
the pillows and the shams, it is the opinion of this office that
they are adapted to fit one another, are mutually complementary
and would not normally be offered for sale separately.
Accordingly, as the articles are classifiable as composite goods,
the classification is based on the component which imparts the
essential character to the good. EN VII to GRI 3(b) states:
The factor which determines the essential character will
vary as between different kinds of goods. It may for
example, be determined by the nature of the material or
component, its bulk, quantity, weight or value, or by the
role of a constituent material in relation to the use of the
goods.
The pillow comprises the essential character of the pillow
sham and pillow. It provides the bulk, the weight and the form
to the item. Heading 9404, HTSUS, provides for, among other
things, articles of bedding and similar furnishings. Although
size specifications are not explicitly outlined in the terms of
heading 9404, HTSUS, Customs has held that so long as pillows are
sufficient in size and stuffing to be capable of providing
support, classification in heading 9404, HTSUS, is not excluded.
Accordingly, it is the opinion of this office that the subject
pillows are adequate in size to provide support and thus, are
properly classified in heading 9404, HTSUS.
Country of origin
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
foreign material 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) 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":
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 subject merchandise is classifiable in subheading
9404.90, HTSUS. As the fabric comprising this merchandise is
formed in both Belgium and the United States, section
102.21(c)(2) is not applicable.
Paragraph (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 merchandise is not knit to shape and
subheading 9404.90, HTSUS, is excepted from provision (ii),
paragraph (c)(3) is inapplicable.
Paragraph (c)(4) states that, "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 operation occurs at the time of the
fabric formation. As the fabric formation for this merchandise
occurs in more than one country, and no one fabric can be
considered more important in this case, country of origin cannot
be readily determined based on the fabric making process. As
such, paragraph (c)(4) is not applicable.
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 subject
merchandise, the last country in which an important assembly
operation occurs is the United States.
Section 304, Tariff Act of 1930, as amended (19 U.S.C. 1304),
requires that, unless excepted, every article of foreign origin (or
its container) imported into the U.S. shall be marked in a
conspicuous place as legibly, indelibly and permanently as the
nature of the article (or its container) will permit in such manner
as to indicate to the ultimate purchaser the English name of the
country of origin of the article. The regulations implementing the
requirements and exceptions to 19 U.S.C. 1304 are set forth in Part
134, Customs Regulations (19 CFR Part 134).
Section 134.1(d), Customs Regulations (19 CFR 134.1(d)),
provides that the "ultimate purchaser" is generally the last person
in the U.S. who will receive the article in the form in which it
was imported. If an imported article will be used in manufacture
in the U.S., the manufacturer may be the "ultimate purchaser" if he
subjects the imported article to a process which results in a
substantial transformation of the article. In that situation, the
manufactured article, as a good of the U.S., is excepted from
country of origin marking and only the outermost container of the
imported article must be marked with the article's origin. See 19
CFR 134.35(a).
In this case, since the imported fabric will be processed in
the U.S. in a manner that results in the pillow becoming a good of
the U.S., the U.S. processor will be considered the "ultimate
purchaser" of the imported fabric. Therefore, pursuant to 19 CFR
134.35(a), the pillows are excepted from country of origin marking
and only the outermost container in which the fabric is imported
must be marked to indicate that the fabric's origin is Belgium.
You inquire whether "Handcrafted in the United States" is an
appropriate marking for this merchandise. The use of the phrase
"Made in U.S.A." or any marking similar to "Made in" when followed
by the United States is within the jurisdiction of the Federal
Trade Commission. Therefore, you should contact the FTC regarding
the appropriateness of the use of this phrase. The FTC address is:
Federal Trade Commission, Division of Enforcement, 6th and
Pennsylvania Avenue, N.W., Washington, D.C. 20508.
HOLDING:
The country of origin of the subject decorative pillows, is
the United States.
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 177.9(b)(1).
This section states that a ruling letter is issued on the
assumption that all of the information furnished in the ruling
letter, either directly, by reference, or by implication, is
accurate and complete in every material respect.
Should it be subsequently determined that the information
furnished is not complete and does not comply with 19 CFR
177.9(b)(1), 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
in accordance with 19 CFR 177.2.
Sincerely,
John Durant, Director
Tariff Classification Appeals
Division