HQ 0087345 - Classification of cushions; classifiable in Heading 9404; insufficient information to make country of origin determinations - United States International Trade Commision Rulings

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HQ 087345

September 25, 1990

CLA-2 CO:R:C:G 087345 CC

CATEGORY: CLASSIFICATION

TARIFF NO.: 9404.90.1000, 9404.90.2000

Ms. Gloria M. Columbe
A.N. Deringer, Inc.
30 West Service Road
Champlain, N.Y. 12919-9703

RE: Classification of cushions; classifiable in Heading 9404; insufficient information to make country of origin determinations

Dear Ms. Columbe:

This letter is in response to your inquiry of May 25, 1990, on behalf of Galerie India, requesting tariff classification and country of origin determinations for cushions. Samples were submitted for examination.

FACTS:

You have submitted four samples for classification. Each sample is a square-shaped cushion that measures approximately 15 inches on each side. Each sample contains a filling made of polyester.

Sample A is designated by you as "silk saree border." The front is made of old silk sarees, and the back is made of plain rayon.

Sample B is designated by you as "Tibetan brocade." The front is made of hand-loomed rayon brocade in traditional Tibetan design, and the back is made of plain rayon.

Sample C is designated by you as "Tapestry." The front is made of 60 percent cotton and 40 percent rayon, and the back is made of satin finish rayon with rayon piping.

Sample D, designated by you as "pulkari," is a traditional Indian cotton hand embroidered article, with tiny mirror fragments. The front is made of old tapestries, wall hangings, or garments, and the back is made of cotton hand-loomed fabric.

You state that the covers are made in India, and the filling is made in Canada. No other information was provided to indicate what work was done and where it was done to create the finished cushions.

ISSUE:

Whether the submitted merchandise is classifiable in Heading 9404 of the Harmonized Tariff Schedule of the United States Annotated (HTSUSA)?

What is the country of origin of the merchandise at issue?

Whether the submitted merchandise is eligible for duty treatment under the Canada Free Trade Agreement (CFTA)?

LAW AND ANALYSIS:

Classification

Classification of merchandise under the 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.

Heading 9404, HTSUSA, provides for, among other articles, 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. The submitted merchandise is internally fitted with polyester, and can be described as a pillow or cushion. Therefore, it is classifiable in Heading 9404.

Sample D is classifiable under subheading 9404.90.1000, HTSUSA, which provides for pillows, cushions, and similar furnishings, of cotton. Samples A and B are classifiable under subheading 9404.90.2000, HTSUSA, which provides for pillows, cushions, and similar furnishings, other. The question that remains is under which subheading is Sample C classified.

For Sample C, the front is made of 60 percent cotton and 40 percent rayon, the back is made of rayon, and the filling is made of polyester. According to Subheading Note 2 to Section XI, HTSUSA:

(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 interpretative rule 3 shall be taken into account.

GRI 3(b) provides that goods consisting of different materials shall be classified as if they consisted of the material or component which gives them their essential character.

The front cover basically provides the decoration for Sample C and, we believe, imparts the essential character to this article. Note 2 to Section XI states that 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. Since cotton predominates by weight in the front cover, Sample C is classifiable under the subheading for cotton, 9404.90.1000, HTSUSA.

Country of Origin

For quota purposes, Section 12.130 of the Customs Regulations (19 CFR 12.130) is applicable. Section 12.130 provides that a textile product that is processed in more than one country or territory shall be a product of that country or territory where it last underwent a substantial transformation. A textile product will be considered to have undergone a substantial transformation if it has been transformed by means of substantial manufacturing or processing operations into a new and different article of commerce.

Section 12.130(d)(2) of the Customs Regulations states that in determining whether merchandise has been subjected to substantial manufacturing or processing operations, the following will be considered:

(i) The physical change in the material or article as a result of the manufacturing or processing operations in each foreign territory or country, or insular possession of the U.S.

(ii) The time involved in the manufacturing or processing operations in each foreign territory or country, or insular possession of the U.S.

(iii) The complexity of the manufacturing or processing operations in each foreign territory or country, or insular possession of the U.S.

(iv) The level or degree of skill and/or technology required in the manufacturing or processing operations in each foreign territory or country, or insular possession of the U.S.

(v) The value added to the article or material in each foreign territory or country, or insular possession of the U.S., compared to its value when imported into the U.S.

Since we do not have sufficient information concerning the factors listed above, we are unable to issue a ruling concerning the country of origin for the merchandise at issue at this time. We would also need more detailed information concerning the manufacturing and processing operations performed in each country to create the merchandise. If such information were submitted, we would also be able to make a determination whether the goods were subject to a different rate of duty under the CFTA.

If you still wish to receive a ruling concerning the country of origin of the submitted merchandise, please submit a new request, containing the additional information requested, to the following address:

Mr. John Durant
Director
Commercial Rulings Division
U.S. Customs Service
1301 Constitution Avenue, N.W.
Washington, D.C. 20229

HOLDING:

Samples C and D are classified under subheading 9404.90.1000, HTSUSA, 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 textile category is 369.

Samples A and B are classified under subheading 9404.90.2000, HTSUSA, 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. Articles classified under this subheading are not subject to a textile category.

If the articles meet the definition of "goods originating in the territory of Canada" (see General Note 3(c)(vii)(B), HTSUSA), they are subject to different rates of duty under the United States-Canada Free Trade Agreement Implementation Act of 1988.

Due to the changeable nature of the statistical annotation (the ninth and tenth digits of the classification) and the restraint (quota/visa) categories applicable to textile merchandise, you should contact your local Customs office prior to importation of this merchandise to determine the current status of any import restraints or requirements.

The designated textile and apparel category may be subdivided into parts. If so, visa and quota requirements applicable to the subject merchandise may be affected. Since part categories are the result of international bilateral agreements which are subject to frequent renegotiations and changes, to obtain the most current information available, we suggest that you check, close to the time of shipment, the Status Report On Current Import Quotas (Restraint Levels), an internal issuance of the U.S. Customs Service, which is available for inspection at your local Customs office.

Sincerely,

John Durant, Director

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