HQ 0733269 - Country of origin marking of imported bed linens; 19 CFR 12.130; cutting and hemming; bed sheets; pillow cases. - United States International Trade Commision Rulings

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HQ 733269

April 29, 1991

MAR-2-05 CO:R:C:V 733269 RSD

CATEGORY: MARKING

Sherry Singer, Esq.
Soller, Singer & Horn
No. 10, The Mews
421 Hudson Street
New York, N.Y. 10014

RE: Country of origin marking of imported bed linens; 19 CFR 12.130; cutting and hemming; bed sheets; pillow cases.

Dear Ms. Singer:

This is in response to your letter of July 12, 1990, requesting a country of origin ruling on behalf of Ostrow International Ltd., regarding imported bed linen sets. A conference was held at your request and a second meeting in which the video tape was viewed.

FACTS:

The printed fabric is produced in Country A and shipped to Country B in rolled stock form. In Country B the fabric is cut and sewn into sheets. The flat sheet is hemmed at the top and bottom and may require side stitching. The fitted sheet is stitched on both sides. Pockets are cut and formed at all four corners, into which an elastic tape is sewn. The pocket is then stitched closed. The pillow case is stitched across the top and bottom and hemmed completely around the open end. You submitted a sample sheet set. The sample fitted sheet is sewn at the pockets only which suggests that the sheet is only cut on two sides. The flat sheet is sewn on four sides. A videotape showing bed linen sets being made in a foreign country was also submitted for examination.

ISSUE:

Whether the processing of the fabric performed in Country B to make bed sheets and pillow cases would constitute a substantial transformation in accordance with the requirements set forth at 19 CFR 12.130.

LAW AND ANALYSIS:

Section 304 of the Tariff Act of 1930, as amended (19 U.S.C. 1304), provides that, unless excepted, every article of foreign origin imported into the U.S. 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 U.S. the English name of the country of origin of the article.

Section 12.130, Customs Regulations (19 CFR 12.130), sets forth the principles for making country of origin determinations for textile and textile products subject to section 204 of the Agricultural Act of 1956, as amended (7 U.S.C. 1854)("section 204"). According to T.D. 90-17, published in the Federal Register on March 1, 1990, (55 FR 7303), the principles of country of origin for textiles and textile products contained in 19 CFR 12.130 are applicable to such merchandise for all purposes, including duty and marking.

Pursuant to 19 CFR 12.130, the standard of substantial transformation governs the determination of the country of origin where textiles and textile products are processed in more than one country. The country of origin of textile products is deemed to be that foreign territory, country, or insular possession where the article last underwent a substantial transformation. Substantial transformation is said to occur when the article has been transformed into a new and different article of commerce by means of substantial manufacturing or processing operations. In other words, for textiles governed by 19 CFR 12.130 there is a two part test for substantial transformation: 1) a new different article of commerce and 2) a substantial manufacturing or processing operation.

Section 12.130(d)(1) states that a new and different article of commerce will usually result from a manufacturing or processing operation if there is a change in: (i) commercial designation or identity, (ii) fundamental character or (iii) commercial use.

The factors to be applied in determining whether or not a manufacturing operation is substantial are set forth in 19 CFR 12.130(d) and (e). Section 12.130(d)(2) lists some of the factors considered in determining whether a substantial manufacturing or processing operation has occurred. These factors include: the physical change in the material or article; the time involved in the processing; the complexity of the operation; the level or degree or skill and technology required in the operation; and the value added to the article or material in the non-U.S. based operation versus the value added to the article or material in the U.S.

I. Bed sheets

In this case, fabric is transformed into both flat and fitted bed sheets in a second foreign country, both of which are new and different articles of commerce. Both flat and fitted bedsheets differ from bolts of fabric in commercial designation, fundamental character and commercial use. Therefore, the first prong of the substantial transformation standard is satisfied for the fabric which is maded into both flat and fitted bed sheets.

The second prong of the substantial transformation standard, which requires that the article undergo a substantial manufacturing or processing operation in the second foreign country, must also be satisfied in order for the fabric to be considered substantially transformed.

Section 12.130(e)(iv) states that a textile article will usually be a product of a particular country if the cutting of the fabric into parts and the assembly of those parts into the completed article has occurred in that country. However, 19 CFR 12.130(e)(2)(ii) creates an exception for material merely having undergone cutting to length or width and hemming or overlocking fabrics which are readily identifiable as being intended for a particular commercial use. T.D. 85-38, the final rule document for 19 CFR 12.130 explains that "where fabric which is readily identifiable as being intended for a particular commercial use (e.g. toweling or bed linen material) is merely cut to length or width, with the edges then being either hemmed or overlocked...the foreign territory or country which produced the fabric is the country of origin and not the country where the fabric was cut." 50 FR 8714.

Customs held in HQ 086523 (April 25, 1990), that bed sheets made out of material woven, dyed and printed in Pakistan were considered to be from Pakistan even though the material was cut to length and hemmed in Dubai. We noted in the ruling that - the processes performed in Dubai, i.e. cutting to length and hemming, do not constitute a substantial transformation. This ruling is in conformity with the example set forth at 19 CFR 12.130(e)(2)(ii). Recently, Customs ruled in HQ 733180 (December 13, 1990), that fabric cut on four sides and hemmed in a second country and made into a flat bed sheet was not substantially transformed because the manufacturing or processing operation involved in that second country was not a substantial manufacturing operation.

In other rulings which did not involve sheets specifically, Customs has addressed the issue of whether the cutting to length and width and hemming of material constitutes a substantial manufacturing or processing operation. Customs recently ruled in HQ 733746 (November 14, 1990), that cotton surgical cloth cut to both length and width and hemmed on all four sides in a second country was not substantially transformed in that second country. In HQ 733250 (August 10, 1990), Customs ruled that cloth cut and hemmed on all four sides to make a napkin did not constitute a substantial transformation. Cloth cut and hemmed on all four sides to make napkins and table cloths was held by Customs not to constitute a substantial transformation in HQ 733600 (November 16, 1990).

In the case of the flat sheets involved in this case, the manufacturing operation involved in making them is not substantial. The manufacturing process involved in making a flat bed sheet is a relatively simple process, involving little time and skill and which is indistinguishable in terms of the cutting and hemming operations from the making of surgical cloth, cloth napkins and cloth tablecloths, all of which have been held not to be a substantial transformation because the manufacturing or processing operation was not substantial. Further, the processing involved here is virtually identical to the processing involved in HQ 733180 which was not considered a substantial manufacturing operation. There has no been no showing that a lot of time is involved in the processing, that the manufacturing is complex, that a great degree of skill is involved or any comparison of value added in the various countries. Based on all the above considerations, we conclude that the fabric is not substantially transformed in Country B because the manufacturing operation in Country B in which the fabric is made into a flat bed sheet does not constitute a substantial manufacturing process. Since this prong of the test set forth at 19 CFR 12.130 has not been satisfied, the country of origin of the flat bed sheets remains Country A.

The manufacturing operation involved in making fitted sheets differs from the process involved in making flat sheets and is a more complex operation. The fabric used to make the fitted sheet must be cut at the corners and elastic is sewn into the cloth so that the corners will fit over the mattress. This requires additional cutting and stitching and is more complex than merely sewing a straight hem. Further, this operation does take more time than merely hemming. The corners must be sewn in precisely the correct manner so that the finished fitted sheet will properly and securely fit over the four corners of a standard mattress for a particular size bed. Customs held in HQ 733180 that this operation is a substantial manufacturing operation. Based on these factors, we conclude that the fabric which is made into fitted sheets in Country B does undergo a substantial manufacturing operation in that country. Since both prongs of the substantial transformation standard have been satisfied in the case of fabric made into fitted sheets, the fitted sheets are considered a product of Country B.

II. Pillow cases

In Belcrest Linens v. U.S., 741 F2d 1368 (Fed. Cir. 1984), the Court of International Trade held that the process of making a bolt of woven fabric into a pillow case with a scalloped edge was a substantial transformation. The court reached that conclusion because the bolts of fabric were cut, the pieces were scalloped and then sewn with decorative stitching and the sides were sewn up in the second foreign country. We note that Belcrest was decided by the court prior to the implementation of 19 CFR 12.130.

Belcrest and HQ 086523 both held that fabric made into pillow cases in a second foreign country are substantially transformed. Clearly, fabric which is transformed into pillow cases results in the creation of a new and different article of commerce. Pillow cases differ from bolts of fabric in commercial designation, fundamental character and commercial use. Therefore, the first prong of the substantial transformation standard is satisfied for the fabric which is made into pillow cases.

Further, in the case of the pillow cases, the second prong of the substantial transformation standard, requiring a substantial manufacturing or processing operation in the second foreign country, is satisfied. The manufacturing process involved here in making pillow cases involves substantially similar cutting and sewing operations that were involved in Belcrest and HQ 086523. The material is cut, folded, sewn and hemmed on 3 sides, including the open side which requires hemming both ends. Some precision is required to sew a pillow case properly to fit over a standard size pillow and the processing involves folding and sewing five hems per pillow case. Based on these factors and HQ 086523, we conclude that the fabric which is made into pillow cases does undergo a substantial manufacturing or processing operation. Since both prongs of the standard are satisfied, the fabric made into pillow cases is substantially transformed in Country B.

HOLDING:

The fabric, which is cut to length and width and hemmed in Country B to make flat bed sheets, does not undergo a substantial manufacturing process and therefore, pursuant to 19 CFR 12.130, is not substantially transformed in Country B. Therefore, the country of origin for flat sheets for marking, quota and duty purposes would be Country A, where the fabric is made.

The fabric which is used to make fitted sheets and the pillow case does undergo a substantial manufacturing process into a new and different article of commerce in Country B. Both the fitted sheets and the pillow case are considered substantially transformed in Country B. Therefore, the country of origin for the fitted sheets and pillow cases for marking, quota and duty purposes would be Country B.

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 177.9(b)(1), Customs Regulations (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 connection with the ruling request and incorporated in the ruling letter, either directly, by reference, or by implication is accurate and complete in every material respect. Should it subsequently be 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, it is recommended that a new ruling request be submitted in accordance with section 177.2, Customs Regulations (19 CFR 177.2).

Sincerely,

John Durant, Director

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