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NY L81725




January 27, 2005

CLA2-RR:NC:TA:349 L81725

CATEGORY: CLASSIFICATION

Ms. Hope Sirekis
Great Lakes Customs Brokerage, Inc.
4500 Witmer Industrial Estates
Niagara Falls, NY 14305-1386

RE: Classification, status under the North American Free Trade Agreement (NAFTA), marking and country of origin determination for cervical pillows; 19 CFR 102.21(c)(2); tariff shift; NAFTA Preference Override; Article 509

Dear Ms. Sirekis:

This is in reply to your letter dated January 5, 2005, requesting a classification, status under the NAFTA, marking and country of origin determination for cervical pillows which will be imported into the United States. This request is made on behalf of Obus Forme Ltd.

FACTS:

The subject merchandise consists of cervical pillows. The submitted sample is made from a solid piece of polyurethane foam and a fabric cover. The plastic foam measures approximately 15 x 21 inches and is contoured to maintain cervical alignment while one sleeps. You refer to the fabric cover as a pillowcase. It is not a bed linen pillowcase but rather a pillow cover of heading 6304. The cover is made from 65 polyester and 35 percent cotton woven fabric. It measures approximately 19 x 26 inches and has a zipper opening along one side. Three labels are affixed to the cover. One contains the name Obus Forme and trademarked phrases; the second shows the fiber content, origin marking, company name and washing instructions; and the third is the “law” label referring to the polyurethane foam fill. The manufacturing operations for the cervical pillows are as follows:

CHINA:
-polyester/cotton fabric is woven and finished. -fabric is cut and sewn forming the zippered cover. -cover is packed and shipped to Canada.

CANADA:
-polyurethane foam pillow is formed.
-foam pillow is trimmed and inserted into the cover. -cervical pillow is packed and shipped.

ISSUE:

What are the classification, status under the NAFTA, marking and country of origin of the subject merchandise?

CLASSIFICATION:

The applicable subheading for the cervical pillows will be 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. The general rate of duty will be 6 percent ad valorem.

The pillows fall within a subheading that is not assigned a textile category designation. Quota and visa status are the result of international agreements that are subject to frequent renegotiations and changes. To obtain the most current information as to whether quota and visa requirements apply to this merchandise, we suggest that you check, close to the time of shipment, the “Textile Status Report for Absolute Quotas” available at our web site at www.cbp.gov. In addition, you will find current information on textile import quotas, textile safeguard actions and related issues at the web site of the Office of Textiles and Apparel, at otexa.ita.doc.gov.

NAFTA ELIGIBILITY:

The cervical pillows undergo processing operations in Canada. Canada is a country provided for under the North American Free Trade Agreement. These products will be eligible for the NAFTA preference if they qualify to be marked as a good of Canada and if they are wholly obtained or produced in the NAFTA territories or transformed in Canada so that the non-originating material undergoes a change in tariff classification described in subdivision (t) to General Note 12, HTSUSA. For heading 9404, HTSUSA, the appropriate subdivision (t) rule states that:

A change to subheading 9404.90 from any other chapter, except from headings 5007, 5111 through 5113, 5208 through 5212, 5309 through 5311, 5407 through 5408 or 5512 through 5516.

When the non-originating pillow covers from China enter Canada, they are classified in heading 6304, HTSUSA. As heading 6304, HTSUSA is not excepted by subdivision (t), the merchandise undergoes the requisite change in tariff classification and the cervical pillows qualify for NAFTA preference.

The fact that the covers are merely placed over the foam pillows and zippered closed does not disqualify the cervical pillows from being considered as originating goods. A similar issue (merely packaging with a retail set) was addressed in Headquarters Ruling letter (HQ) 561326, dated April 26, 1999. In that ruling, Customs and Border protection explained that there is no language in General Note 12, HTSUSA, which would disqualify a good from obtaining originating status by virtue of merely having undergone simple packaging or combining operations. Thus, non-originating items may undergo the requisite tariff shift under General Note 12 (t), HTSUSA, when combined in Canada with originating items.

Pursuant to the analysis set forth above the cervical pillows qualify as originating goods. Accordingly, they will be entitled to the special "CA" rate of duty if they qualify to be marked as a good of Canada and provided that all other NAFTA requirements are met.

COUNTRY OF ORIGIN - LAW AND ANALYSIS:

Section 334 of the Uruguay Round Agreements Act (codified at 19 U.S.C. 3592), enacted on December 8, 1994, provided 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 Section 334 (60 FR 46188). Section 334 of the URAA was amended by section 405 of the Trade and Development Act of 2000, enacted on May 18, 2000, and accordingly, section 102.21 was amended (68 Fed. Reg. 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 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 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 pertinent part 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":

HTSUS Tariff shift and/or other requirements

9404.90 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.

Subheading 9404.90.20 is not included in the paragraph (e)(2) exception to the above tariff shift rule. The pillows are made from plastic foam and a textile cover. The cover is made from a fabric that was formed in a single country. As the fabric comprising the pillows is formed in a single country, that is, China, as per the terms of the tariff shift requirement, country of origin is conferred in China.

However, the cervical pillows qualify as a NAFTA originating good. As stated in Section 102.19(a):

Except in the case of goods covered by paragraph (b) of this section, if a good which is originating within the meaning of §181.1(q) of this chapter is not determined under §102.11(a) or (b) or §102.21 to be a good of a single NAFTA country, the country of origin of such good is the last NAFTA country in which that good underwent production other than minor processing, provided that a Certificate of Origin (see §181.11 of this chapter) has been completed and signed for the good.

As the pillows qualify as a NAFTA originating good, applying the terms of Section 102.19(a), the country of origin of the cervical pillows is Mexico. The pillows will be entitled to the special "CA" duty rate, provided that all other requirements of the NAFTA are met.

MARKING:

You have also requested a ruling on whether the current marking “Made in China” is an acceptable country of origin marking for the cervical pillows. The marking statute, Section 304, Tariff Act of 1930, as amended (19 U.S.C. 1304), provides 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 a manner as to indicate to the ultimate purchaser in the U.S. the English name of the country of origin of the article.

Additionally, Section 134.46, Customs Regulations (19 CFR 134.46), deals with cases in which the words "United States," or "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 other than the country or locality in which the article was manufactured or produced, appears on an imported article or its container, and those words, letters or names may mislead or deceive the ultimate purchaser as to the actual country of origin. In such a case, there shall appear, legibly and permanently, in close proximity to such words, letters, or name, and in at least a comparable size, the name of the country of origin preceded by "Made in," Product of," or other words of similar meaning. In order to satisfy the close proximity requirement, the country of origin marking must generally appear on the same side(s) or surface(s) in which the name or locality other than the actual country of origin appears.

The above origin determination indicates that the country of origin of the cervical pillows is Canada. One of the labels on the submitted pillow cover is marked “Made in / Fabriqué à China /Chine.” The marking “Made in / Fabriqué à China /Chine” does not indicate the correct country of origin as determined above. Since the marking is in direct conflict with the origin determination made pursuant to Sections 102.21 and 102.19(a), it does not satisfy the marking requirements of 19 U.S.C. 1304 and, thus, is not acceptable country of origin marking for the cervical pillows.

We also note that the “law” label and the French language side of the outer plastic packaging make reference to “Roland Zsahach, E Z L Marketing” and provide an address in Newcastle-Upon-Tyne, United Kingdom. The plastic bag also provides the name of your client, Obus Forme Ltd., and their address in Ontario, Canada. The reference to the United Kingdom on the bag and “law” label is misleading and not acceptable. Although the plastic bag is marked “Canada” it is not preceded by "Made in," Product of," or other words of similar meaning.

The current marking of imported cervical pillows, as described above, does not satisfy the marking requirements of 19 U.S.C. 1304 and 19 CFR Part 134 and is not acceptable country of origin marking for the imported pillows.

HOLDING:

The country of origin of the cervical pillows is Canada. The pillows will be entitled to the NAFTA “CA” duty rate of Free upon compliance with all applicable laws, regulations and agreements.

This ruling is being issued under the provisions of Part 181 of the Customs Regulations (19 C.F.R. 181). Should it be subsequently determined that the information furnished is not complete and does not comply with 19 CFR 181.100(a)(2), 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.

This ruling letter is binding only as to the party to whom it is issued and may be relied on only by that party.

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 John Hansen at 646-733-3043.

Sincerely,

Robert B. Swierupski
Director,

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