Miguel A. Encinas
M Border Solutions, Inc.
9051 Siempre Viva Rd., Suite K2
San Diego, CA 91910
RE: The tariff classification, United States Mexico Canada Agreement (USMCA) applicability, country of origin, and marking of bed pillows
Dear Mr. Encinas:
In your letter dated June 24, 2022, you requested a binding ruling on behalf of your client, Amrapur Overseas, Inc. In lieu of samples, illustrative literature and product descriptions were provided.
The subject articles are described as two polyester bed pillows stuffed with polyester fiberfill that differ only in size.
Item 1, # 5DWNWHTG-IMT-ST, is a standard-size 100% polyester woven pillow with polyester fiberfill that measures 20" x 26". It is made from a piece of plain white fabric sewn along two or three edges, with either piping or a double-stitch edge.
Item 2, #5DWNWHTG-IMT-KG, is a king-size 100% polyester woven pillow with polyester fiberfill that measures 20" x 36". It is made from a piece of plain white fabric sewn along two or three edges, with either piping or a double-stitch edge.
MANUFACTURING OPERATIONS PERFORMED IN CHINA
The polyester fabric is woven, bleached, dyed, and cut. The edges are then sewn so that one side remains open creating a pillow shell. The pillow shells are then packed for export to Mexico.
MANUFACTURING OPERATIONS PERFORMED IN MEXICO
The pillow shells are filled with polyester fiber and sewn closed with the required labels stitched into the seam. The pillows are compressed, inserted and sealed into a plastic bag using a vacuum machine. The pillows are then packed in a carton for export to the U.S.
You suggest classification of the subject pillows in subheading 9404.90.2000, 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: Other." We agree.
TRADE AGREEMENT - USMCA
The USMCA was signed by the Governments of the United States, Mexico, and Canada on November 30, 2018. The USMCA was approved by the U.S. Congress with the enactment on January 29, 2020, of the USMCA Implementation Act. General Note (GN) 11 of the HTSUS implements the USMCA. GN 11(b) sets forth the criteria for determining whether a good is an originating good for purposes of the USMCA. GN 11(b) states: "For the purposes of this note, a good imported into the customs territory of the United States from the territory of a USMCA country, as defined in subdivision (l) of this note, is eligible for the preferential tariff treatment provided for in the applicable subheading and quantitative limitations set forth in the tariff schedule as a "good originating in the territory of a USMCA country" only if -
the good is a good wholly obtained or produced entirely in the territory of one or more USMCA countries;
the good is a good produced entirely in the territory of one or more USMCA countries, exclusively from originating materials;
the good is a good produced entirely in the territory of one or more USMCA countries using non-originating materials, if the good satisfies all applicable requirements set forth in this note (including the provisions of subdivision (o));"
Since the bed pillows are made with non-originating materials, they are not wholly obtained or produced entirely in a USMCA country under GN 11(b)(i), nor are they produced exclusively from originating materials under GN 11(b)(ii). Therefore, we must next determine whether the non-originating materials undergo the tariff shift and other requirements provided for in GN 11(b)(iii) and GN 11(o), which, for merchandise in subheading 9404.90, HTSUS, provides in relevant part the following:
"A change to subheading 9404.90 from any other chapter, except from headings 5007,5111 through 5113, 5208 through 5212, 5310 through 5311, 5407 through 5408 or 5512 through 5516."
Since the non-originating materials (Chinese pillow shells in subheading 6307.90, HTSUS), make a permissible tariff shift under GN 11(o), Rule 7 to Chapter 94, HTSUS, when manufactured into pillows in Mexico, the subject pillows originate under the USMCA. The USMCA preferential rate of duty for pillows in 9404.90.2000, HTSUS, is "free."
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 the Internet at https://hts.usitc.gov/current.
COUNTRY OF ORIGIN
Section 334 of the Uruguay Round Agreements Act (codified at 19 U.S.C. 3592) (URAA), enacted on December 8, 1994, provides 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 334 (60 FR 46188). Section 334 of the URAA was amended by 405 of the Trade and Development Act of 2000, enacted on May 18, 2000, and accordingly, 102.21 was amended (68 FR 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 102.21.
Paragraph (c)(1) states: "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 102.21 is inapplicable.
Paragraph (c)(2) states: "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 its pertinent part states: "The following rules will apply for purposes of determining the country of origin of a textile or apparel product under paragraph (c)(2) of this section:"
Paragraph (e) in pertinent part states: "The following rules will apply for purposes of determining the country of origin of a textile or apparel product under paragraph (c)(2) of this section." The rule for HTSUS subheading 9404.90 states the following: "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."
Since subheading 9404.90.2000, HTSUS, is not among the paragraph (e)(2) exceptions, the country of origin of the subject pillows is conferred in the country where the fabric comprising them was formed. As the pillow shell fabric for the subject pillows was formed in China, this office finds that the pillows are of Chinese origin.
Part 134 of 19 CFR implements the country of origin marking requirements of 19 U.S.C. 1304. Unless excepted by law, every article of foreign origin imported into the United States shall be marked in a conspicuous place as legibly, indelibly, and permanently as the nature of the article (or container) will permit, in such a manner as to indicate to the ultimate purchaser in the United States the English name of the country of origin of the article.
You have proposed marking the pillows "Cover made in China, Pillow filled/finished in Mexico". We believe that such marking may be confusing to the ultimate purchaser and thus not in compliance with the requirements of 19 CFR 134.46. Section 134.46, Customs Regulations (19 CFR 134.46), requires that when the words "United States," "American," the letters "U.S.A.," any variation of such words or letters, or the name of any city or locality in the United States, or the name of any foreign country or locality which is not the country of origin appears on the imported article or its container the name of the country of origin shall appear legibly, permanently, in close proximity, and in at least comparable size, preceded by the additional words "Made in," "Product of," or other words of similar meaning. The purpose of this section is to prevent the possibility of misleading or deceiving the ultimate purchaser. Therefore, such wording as "Made in China," "Made in China, finished in Mexico," "Made in China, filled in Mexico" would satisfy the requirements of 19 CFR 134.46.
With respect to your inquiry as to the applicability of Section 301 requirements, we note that pursuant to U.S. Note 20 to Subchapter III, Chapter 99, HTSUS, products of China classified under subheading 9404.90.2000, HTSUS, unless specifically excluded, are subject to an additional 7.5% ad valorem rate of duty. At the time of importation, the importer must report the Chapter 99 subheading, i.e., 9903.88.15, in addition to subheading 9404.90.2000, HTSUS, listed above.
This ruling is being issued under the provisions of Part 177 of Title 19 of the Code of Federal Regulations (19 C.F.R. Part 177).
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 Seth Mazze at [email protected]
Steven A. Mack
National Commodity Specialist Division