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HQ 960337




April 22, 1997
CLA-2 RR:TC:TE 960337 jb

CATEGORY: CLASSIFICATION

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

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