CLA-2 RR:TC:TE 959557 jb
Mrs. Alice Wagner
Tower Group International, Inc.
128 Dearborn Street
Buffalo, NY 14207-3198
RE: Country of origin determination for an ironing board pad and
cover; Section 102.21(c)(5); last country in which an
important assembly or manufacturing process occurs; NAFTA
Dear Mrs. Wagner:
This is in reply to your letter dated July 25, 1996, on
behalf of Elco Home Fashions Inc., requesting a country of origin
determination for an ironing board pad and cover which will be
imported into the United States. A sample was submitted to this
office for examination.
FACTS:
The subject merchandise consists of an ironing board pad and
cover which consists of a 100 percent cotton woven cover, a 1/4
inch foam pad and a non-woven polyester pad. The manufacturing
operations are as follows:
PAKISTAN
- greige cotton fabric for the cover is formed.
CANADA
- fabric for the cover is printed and cut to shape;
- clear Teflon coating is applied to fabric for cover;
- 1/4 inch foam is manufactured and cut to shape;
- non-woven polyester padding is manufactured from 90-95
percent U.S.A origin fibres plus 5-10 percent waste fibres
of unknown origin and cut to shape;
- sewing together of cover, foam and padding; hemming around
the edges and attaching draw cord with a cord closer.
ISSUE:
1. What is the country of origin of the subject merchandise?
2. What is the proper marking of the subject merchandise?
LAW AND ANALYSIS:
NAFTA Eligibility
The subject ironing board pad and cover undergoes processing
operations in Canada which is a party to the North American Free
Trade Agreement (NAFTA). General Note 12, Harmonized Tariff
Schedule of the United States Annotated (HTSUSA), incorporates
Article 401 of the North American Free Trade Agreement (NAFTA)
into the HTSUSA. Note 12(a) provides, in pertinent part:
* * *
(I) Goods that originate in the territory of a NAFTA party
under subdivision (b) of this note and that qualify to
be marked as goods of Canada under the terms of the
marking rules... and are entered under a subheading for which a
rate of duty appears in the "Special" subcolumn followed by
the symbol "CA" in parentheses, are eligible for such duty
rate... . [Emphasis added]
Accordingly, the ironing board pad and cover at issue will be
eligible for the "Special" "CA" rate of duty provided it is a
NAFTA "originating" good under General Note 12(b), HTSUSA, and it
qualifies to be marked as a good of Canada. Note 12(b) provides,
in pertinent part,
For the purposes of this note, goods imported into the
customs territory of the United States are eligible for the
tariff treatment and quantitative limitations set forth in
the tariff schedule as "goods originating in the territory
of a NAFTA party" only if--
(i) they are goods wholly obtained or produced entirely in
the territory of Canada,
Mexico and/or the United States; or
(ii) they have been transformed in the territory of
Canada, Mexico and/or the United States so that--
(A) except as provided in subdivision (f) of this note,
each of the non-originating materials used in
the production of such goods undergoes a change in tariff
classification described in subdivisions (r), (s) and
(t) of this note or the rules set forth
therein, or,
(B) the goods otherwise satisfy the applicable
requirements of subdivisions (r), (s) and (t)
where no change in tariff classification is required, and the
goods satisfy all other requirements of this
note; or
(iii) they are goods produced entirely in the territory
of Canada, Mexico and/or the United States exclusively
from originating materials; or
* * *
The subject merchandise qualifies for NAFTA treatment only
if the provisions of General Note 12(b)(ii)(A) are met, that is,
if the merchandise is transformed in the territory of Canada so
that the non-originating material (the cotton fabric for the
cover) undergoes a change in tariff classification as described
in subdivision (t).
The subject merchandise is classified in heading 6307,
HTSUS. Subdivision (t), Chapter 63, rule 1, states that the
tariff shift applies only for the component which determines the
classification of the good. In the case of the subject ironing
board pad and cover, the fabric cover is determinative of the
classification. As such, for the ironing board cover,
subdivision (t), Chapter 63, rule 4, states that:
A change to headings 6304 through 6310 from any other
chapter, except from headings 5106 through 5113, 5204
through 5212, 5307 through 5308 or 5310 through 5311,
chapters 54 through 55, or headings 5801 through 5802 or
6001 through 6002, provided that the good is both cut (or
knit to shape) and sewn or otherwise assembled in the
territory of one or more of the NAFTA parties.
When the fabric for the ironing board cover leaves Pakistan,
it is classifiable as a woven fabric of cotton of heading 5208,
HTSUS. As fabrics of heading 5208, HTSUS, are excepted by rule
4, cited above, from meeting the tariff change to headings 6304
through 6310, HTSUS, the non-originating material from Pakistan
does not undergo the requisite change in tariff classification.
Accordingly, the merchandise is not eligible for the NAFTA
preference.
Country of origin
On September 5, 1995, Customs published in the Federal
Register (60 FR 46188)) T.D. 95-69 which set forth final
amendments to the Customs Regulations to implement the provisions
of section 334 (b) of the Uruguay Round Agreements Act ("the
Act"), codified at 19 U.S.C. 3592, Public Law 103-465, 108 Stat.
4809, regarding the country of origin of textile and apparel
products. These final regulations apply to goods entered, or
withdrawn from warehouse, for consumption on or after July 1,
1996. The regulatory provisions in T.D. 95-69 that implement the
basic origin principles of section 334(b) of the Act are
contained in a new 102.21 of the Customs Regulations (19 CFR
102.21).
The final rule for the rules for determining country of
origin of a good for purposes of Annex 311 of the NAFTA was
published by Customs on June 6, 1996, in the Federal Register (61
FR 28932). Therein it was stated, in pertinent part:
New 102.21 was modeled on the approach taken in the interim
Part 102 texts as
published in T.D. 94-4 and thus incorporates a general
statement of applicability (paragraph (a)), various
definitions (paragraph (b)), general origin rules
(paragraphs (c) and (d)), and specific tariff shift and/or
other requirements (paragraph (e)) that apply under the
second general rule. Of particular note for purposes of the
present document is the definition of "textile or apparel
product" in 102.21(b)(5) which delineates the class of
goods covered by the 102.21 rules. That definition
identifies those goods with reference to classification in
the HTSUS and refers to Chapters 50 through 63 (that is, all
of Section XI) of the HTSUS as well as to specific headings
and 6-, 8- or 10-digit subheadings of the HTSUS that fall
outside Section XI. Thus, if a good is classifiable in an
HTSUS provision listed in 102.21(b)(5), precedence must be
given to the 102.21 rules over any other regulatory
provision with regard to that good, including any origin
rules contained elsewhere in part 102.
Accordingly, as the subject ironing board pad and cover is
classified in heading 6307.90, HTSUS, a textile article
identified by 102.21(b)(5), the 102.21 rules take precedence
over any other rules of origin to determine the appropriate
country of origin.
Section 102.21(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 was not wholly obtained or
produced in a single country, Section 102.21(c)(1) is not
applicable.
Section 102.21(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."
Section 102.21(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":
6307.90 The country of origin of a good classifiable
under subheading 6307.90 is the country,
territory, or insular possession in which the fabric comprising the good was formed by a fabric-making
process.
As the fabric comprising the ironing board pad and cover is
formed in more than one country (that is, the fabric cover is
formed in Pakistan and the non-woven polyester pad is formed in
Canada), the merchandise does not meet the terms of the tariff
shift.
Section 102.21(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 and subheading 6307.90,
HTSUS, is excepted by provision (ii), Section 102.21(c)(3) is
inapplicable.
Section 102.21(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 process occurs at the time of the
fabric-making. The fabric for the subject ironing board pad and
cover is sourced from more than one country. In the opinion of
this office both the fabric for the cover and the non-woven
polyester padding are of equal importance. Given the particular
identity of this commodity, the ironing board cover could not
perform its designated use without either the top fabric on which
the clothes will be ironed, or the padding which acts as a
cushion between the top cloth and the ironing board itself,
allowing the clothes to lie flat for ironing As no one fabric
is more important than the other, Section 102.21(c)(4) cannot
readily be used to make a determination.
Section 102.21(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 Canada is the last country in which an important
assembly and manufacturing process occurs.
HOLDING:
The subject ironing board pad and cover set is not eligible
for the NAFTA preference.
In accordance with Section 102.21(c)(5), the country of
origin of the ironing board pad and cover set is Canada for
marking purposes. The merchandise may be marked "Made in
Canada".
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
Tariff Classification Appeals
Division